Wetzel v. Commissioner of Social Security Administration
Court Docket Sheet

District of Arizona

3:2017-cv-08117 (azd)

COMPLAINT filed by Nicole Wetzel. (Submitted by Edward Wicklund)

Case 3:17-cv-08117-BSB Document 1 Filed 06/22/17 Page 1 of 8 1 Edward A Wicklund, Esq. 2 Olinsky Law Group One Park Place 3 300 South State Street 4 Suite 420 Syracuse, NY 13202 5 N.Y. Bar No. 5027818 6 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 7 twicklund@windisability.com 8 Attorney for Plaintiff Nicole Wetzel 9 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 11 PRESCOTT DIVISION 12 13 NICOLE WETZEL,) NO. Soc.Sec. #XXX-XX-0945,) 14 Plaintiff,) 15) v.) COMPLAINT 16) NANCY A. BERRYHILL, acting 17) Commissioner of Social Security,) 18 Defendant.) 19 __________________________________) 20 Plaintiff, Nicole Wetzel, by her attorney, Edward A. Wicklund, alleges as follows: 21 22 1. The jurisdiction of this Court is invoked pursuant to 42 U.S.C. §§ 405(g) 23 and 1383(c)(3) to review a decision of the Commissioner of Social Security denying 24 Plaintiff’s application for Social Security Disability Insurance benefits and Supplemental 25 26 Security Income benefits for lack of disability. 27 2. This action is an appeal from a final administrative decision denying 28 Plaintiff’s claim. Case 3:17-cv-08117-BSB Document 1 Filed 06/22/17 Page 2 of 8 1 3. This action is commenced within the appropriate time period set forth in the 2 attached Appeals Council Notice dated April 19, 2017. (Exhibit A). 3 4 4. Plaintiff, whose social security number is XXX-XX-0945, resides in Camp 5 Verde, Yavapai County, Arizona, which is within this judicial district and division. 6 5. The Defendant, Nancy A. Berryhill, is the acting Commissioner of Social 7 8 Security of the United States of America. 9 6. Plaintiff is disabled. 10 7. The agency committed error of law by denying Appeals Council review of 11 the decision by the Administrative Law Judge, or otherwise to deny relief that was within 12 13 the authority of the Appeals Council. 14 8. The conclusions and findings of fact of the Defendant are not supported by 15 substantial evidence and are contrary to law and regulation. 16 17 WHEREFORE, Plaintiff prays that this Court: 18 1. Find that the Plaintiff is entitled to Social Security Disability Insurance 19 benefits and Supplemental Security Income benefits under the provisions of the Social 20 21 Security Act; or 22 2. Remand the case for a further hearing; 23 3. Award attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 24 25 2412, on the grounds that the Commissioner’s action in this case was not substantially 26 justified; and 27 4. Order such other and further relief as the Court deems just and proper. 28 Dated this 22nd day of June, 2017. Case 3:17-cv-08117-BSB Document 1 Filed 06/22/17 Page 3 of 8 1 2 BY: s/Edward A. Wicklund 3 Edward A. Wicklund, Esq. 4 Attorney for Plaintiff (Pending Admission Pro Hac Vice) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A MCfc, & SOCIAL SECURITY ADMINISTRATION Case 3:17-cv-08117-BSB Document 1 Filed 06/22/17 Page 5 of 8 Refer to: TLC Office of Disability Adjudication 0945 and Review i• Q 5107 Leesburg Pike Falls Church, VA 22041-3255 Telephone: (877) 670-2722 Date: April 19,2017%% p t NOTICE OF APPEALS COUNCIL ACTION%% 4P. 'k3) Ms. Nicole Wetzel This is about your request for review of the Administrative Law Judge's decision dated November 18,2015. We Have Denied Your Request for Review We found no reason under our rules to review the Administrative Law Judge's decision. Therefore, we have denied your request for review. This means that the Administrative Law Judge's decision is the final decision of the g Commissioner of Social Security in your case. Rules We Applied We applied the laws, regulations and rulings in effect as of the date we took this action. i Under our rules, we will review your case for any of the following reasons: 3 • The Administrative Law Judge appears to have abused his or her discretion. i • There is an error of law. § • The decision is not supported by substantial evidence. • There is a broad policy or procedural issue that may affect the public interest. 8 I • We receive new and material evidence and the decision is contrary to the weight of all the evidence now in the record. Suspect Social Security Fraud? Please visit http://0ig.ssa.g0v/r or call the Inspector General's Fraud Hotline at 1-800-269-0271 (TTY1-866-501-2101). See Next Page Nicole Wetzel (3:17-cv-08117-BSB Case-0945) Page 26of Document 1 Filed 06/22/17 Page of38 What We Considered In looking at your case, we considered the reasons you disagree with the decision in Ihe material listed on the enclosed Order of Appeals Council. We found that this information does not provide a basis for changing the Administrative Law Judge's decision. If You Disagree With Our Actkm If you disagree with our action, you may ask for court review of the Administrative Law Judge's decision by filing a civil action. If you do not ask for court review, the Administrative Law Judge's decision will be a final decision that can be changed only under special rules. How to File a Civil Action You may file a civil action (ask for court review) by filing a complaint in the United States District Court for the judicial district in which you live. The complaint should name the Commissioner of Social Security as the defendant and should include the Social Security number(s) shown at the top of this letter. You or your representative must deliver copies of 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 registered mail, to the Social Security Administration's Office of the General Counsel that is responsible for the processing and handling of litigation in the particular judicial district in which the complaint is filed. The names, addresses, and jurisdictional responsibilities ofthese offices are published in the Federal Register (70 FR 73320, December 9,2005), and are available on-line at the Social Security Administration's Internet site, http://policv.ssa.gov/poms.nsfilinks/0203106020. You or your representative must also send copies of the complaint and summons, by certified or registered mail, to the Attorney General of the United States, Washington, DC 20530. Time To File a Civil Action • You have 60 days to file a civil action (ask for court review). • The 60 days start the day after you receive this letter. We assume you received this letter 5 days after the date on it unless you show us that you did not receive it within the 5-day period. See Next Page Case 3:17-cv-08117-BSB Document 1 Filed 06/22/17 Page 7 of 8 Nicole Wetzel (-0945) Page 3 of3 • If you cannot file for court review within 60 days, you may ask the Appeals Council to extend your time to file. You must have a good reason for waiting more than 60 days to ask for court review. You must make the request in writing and give your reasons) in the request. You must mail your request for more time to the Appeals Council at the address shown at the top of this notice. Please put the Social Security numbers) also shown at the top of this notice on your request. We will send you a letter telling you whether your request for more time has been granted. About The Law The right to court review for claims under Title II (Social Security) is provided for in Section 205(g) of the Social Security Act. This section is also Section 405(g) of Title 42 of the United States Code. The right to court review for claims under Title XVI (Supplemental Security Income) is provided for in Section 1631(cX3) of the Social Security Act This section is also Section 1383(c) of Title 42 of the United States Code. The rules on filing civil actions are Rules 4(c) and (i) in the Federal Rules of Civil Procedure. If You Have Any Questions If you have any questions, you may call, write, or visit any Social Security office. If you do call or visit an office, please have this notice with you. The telephone number of the local office that serves your area is (877) 457-1733. Its address is: Social Security Administration 205 North Marina 3 Prescott, AZ 86301-3105 i 5/s/SUad Margaret A. Brock Appeals Officer 8 I o Enclosure: Order of Appeals Council cc: Bradford D. Myler, Esq. Post Office Box 127 Lehi#UT 84043-0127 Case 3:17-cv-08117-BSB Document 1 Filed 06/22/17 Page 8 of 8 > I Social Security Administration 1n OFFICE OF DISABILITY ADJUDICATION AND REVIEW > n 3 5 13 ORDER OF APPEALS COUNCIL% JO IN THE CASE OF CLAIM FOR I S Period of Disability s Disability Insurance Benefits Nicole Wetzel Supplemental Security Income (Claimant) 0945 (Wage Earner) (Social Security Number) The Appeals Council has received additional evidence which it is making part of the record. That evidence consists of the following exhibits: Exhibit 22E Representative Correspondence from Howard Olinsky, Esq. dated December 8,2015 (5 pages) 1 M Exhibit 23E Representative Brief from Howard Olinsky, Esq. dated March 21,2017 (4 pages) 3 Date: April 19,2017 i i I

Civil Cover Sheet

http://www.azd.uscourts.gov/cgi-bin/generate_civil_js44.pl Case 3:17-cv-08117-BSB Document 1-1 Filed 06/22/17 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA This automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of the United States in September 1974. The data is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. The information contained herein neither replaces nor supplements the filing and service of pleadings or other papers as required by law. This form is authorized for use only in the District of Arizona. The completed cover sheet must be printed directly to PDF and filed as an attachment to the Complaint or Notice of Removal. Plaintiff(s): Nicole Wetzel Defendant(s): Nancy A. Berryhill County of Residence: Yavapai County of Residence: Yavapai County Where Claim For Relief Arose: Yavapai Plaintiff's Atty(s): Defendant's Atty(s): Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, New York 13202 3157015780 IFP REQUESTED II. Basis of Jurisdiction: 2. U.S. Government Defendant III. Citizenship of Principal Parties (Diversity Cases Only) Plaintiff:-N/A Defendant:-N/A IV. Origin: 1. Original Proceeding V. Nature of Suit: 864 SSID Title XVI VI.Cause of Action: 42 USC 405(g) and 42 USC 1383(c)(3): Denial of Social Security Disability Insurance benefits and Supplemental Security Income benefits. VII. Requested in Complaint Class Action: No Dollar Demand: Jury Demand: No VIII. This case is not related to another case. Signature: s/Edward A. Wicklund Date: 06/21/2017 If any of this information is incorrect, please go back to the Civil Cover Sheet Input form using the Back button in your browser and change it. Once correct, save this form as a PDF and include it as an attachment to your case opening documents. Revised: 01/2014 1 of 1 6/21/17, 3:24 PM

APPLICATION to Proceed in District Court Without Prepaying Fees or Costs by Nicole Wetzel.

Case 3:17-cv-08117-BSB Document 2 Filed 06/22/17 Page 1 of 5 Page 1 of 5,.1.0239 (Rev. 01/15) Application to Proceed in District Court Without Prepaying Fees or COSI$ (Long Form) UNITED STATES DISTRICT COURT for the District of Arizona NICOLE WETZEL) PlaintifllPelilioner) v.) Civil Action No. NANCY A. BERRYHILL, ACTING COMM. OF SS) Defendant/Respondent) APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (Long Form) Affidavit in Support of the Application Instructions I am a plaintiff or petitioner in this case and declare Complete all questions in this application and then sign it. that I am unable to pay the costs of these proceedings Do not leave any blanks: if the answer to a question is "0," and that I am entitled to the relief requested. I declare "none," or "not applicable (N/A)," write that response. If under penalty ofperj that the information below is you need more space to answer a question or to explain your true and understand a false result in answer, attach a separate sheet of paper identified with your a dismissal of name, your case's docket number, and the question number. Signed: Date: 05/23/2017 1. For both you and your spouse estimate the average amount of money received from each of the following sources during the past 12 months. Adjust any amount that was received weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross amounts, that is, amounts before any deductions for taxes or otherwise. Income source Average monthly income Income amount expected amount during the past 12 next month months You Spouse You Spouse Employment, $ ':'\--. $ '".' $ (J $ Self-employment $ $ $ () $ CJ Income from reat property (slIch as renlal income) $ $ $ 6 $ 0 Interest and dividends Gifts $ 0) $ \ $ 0 $ I $ 0 $ \ $ 0 $ Alimony Child support $ 0 $ \ ~ $ 6 $ $ 2.:5 ir I tY\() $ $ Z5~/'1'U $ I I Case 3:17-cv-08117-BSB Document 2 Filed 06/22/17 Page 2 of 5 Page 2 of 5 1\0239 (Rev, 01115) Applic:Jtion to Proceed in District Court \Vit!WUI Plcpuying Fe". Of Costs (Long Fonn) Retirement (such as social security. pensions. annuities. insurance) $ (,::) $ $ CJ $ ') Disability (.mch as social security. insurance payments) $ $ $ $ 0 0 Unemployment payments () $ $ $ (:) $ Public-assistance (such as welfare) $ $ $ $ F<')(,),-\ S:r", ".[,0-'-; tIl r~ i iN\C) 41S} tV'lI') Other (specifyj: $ $ $ (J $ 0 \ Total monthly income: $-13 i IjW:) $ \ 0.00 $ '-13l! MO $ \ 0.00 2. List your employment history for the past two years, most recent employer first. (Gross lIIonthly pay is before taxes or other deductions,) Employer I Address Dates of employment Gross monthly pay-:c: hu",vc n01-~'(V'\.lL(\ S\'ntc 20 t \ $ I $ 3. List your spouse's employment history for the past two years, most recent employer first. (Gross mOl1lltlypay is before f(tres or other deductions.) Employer Address Dates of employment Gross monthly pay $,lJ If.\.. I $ $ 4. How much cash do you and your spouse have? $ Below, state any money you or your spouse have in bank accounts or in any other financial institution. Financial institution Type of account Amount you have Amount your spouse has $ $ 1\) JA,/' $ $ $ $ If you are a prisoner, YOLl must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months in your institutional accounts. If you have multiple accounts, perhaps because you have been in multiple institutions, attach one certified statement of each account. Case 3:17-cv-08117-BSB Document 2 Filed 06/22/17 Page 3 of 5 Page 3 of 5 AO 239 (Rev. OJI15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) 5. List the assets, and their values, which you own or your spouse owns. Do not Iist clothing and ordinary household furnishings. Assets o,,,,ned by you or your spouse Home (Value) $ C':) Other real estate (Value) $ C) Motor vehicle #1 (Value) $ I,O(x) Make and year: I CjcIC\ ~ c,{ur v) Model: L-r Registration #: Motor vehicle #2 (Value) $ <::::) Make and year: Model: Registration #: Other assets (Value) $ () Other assets (Value) $ 0 6. State every person, business, or organization owing you or your spouse money, and the amount owed. Person owing you or your spouse Amount owed to you Amount owed to your spouse money $ $ NfA. $ $ $ $ 7. State the persons who rely on you or your spouse for support. Name (or, if under 18, initials only) Relationship Age R. N. \1\/Dt· ··htCJ v 16 L.~', \N Dcl-...'-.\c h-\. (' y-')() Case 3:17-cv-08117-BSB Document 2 Filed 06/22/17 Page 4 of 5 Page 4 of 5 AO 239 (Rev, OlliS) Application to Proceed in District COllrt Without Prepaying Fees or Costs (Long Fonn) 8. Estimate the average monthly expenses of you and your family. Show separately the amounts paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. You Your spouse Rent or home-mortgage payment (including lot rented/or mobile home) Are real estate taxes included? 0 Yes o No $ $ \ Is property insurance included? 0 Yes DNa (j Utilities (electricily. heatingjiJel. waler, sewer. alld telephone) $ $ 5() J ly\C J Home maintenance (repairs and upkeep) $ $ () Food $ 'i lS!rv\() $ Clothing $ $ C:) Laundry and dry-cleaning $ a $ Medical and dental expenses $ $ 0 Transportation including motor vehicle paymel1ls) $ $ (/l0(50/f'r\() Recreation, entertainment, newspapers, magazines, etc. $ $ 0 Insurance (not deducted/rom wages or included in mortgage payments) Homeowner's or renter's: $ $ tJ Life: $ () $ Health: $ (j $ Motor vehicle: $ $ 60/~o Other: $ $ CJ Taxes (not deductedji'om wages or included illlllortgage paymel1ts) (specify): $ 0 $ Installment payments Motor vehicle: $ $ 0 Credit card (name): $ $ (J Department store (name): $ $ (') Other: $ (J $ Alimony, maintenance, and support paid to others $ a $ I Case 3:17-cv-08117-BSB Document 2 Filed 06/22/17 Page 5 of 5 Page 5 or 5 AD 239 (Rev. 01115) Application to Proceed in District Court Without Prepaying Fees Of Costs (Long Form) Regular expenses for operation of business, profession, or farm (alladz detailed $ $ stalemem) (") Other (specify): $ $ () $ lo2S Jhvf.J $ 0.00 Total monthly expenses: \ 9. Do you expect any major changes to your monthly income or expenses or in your assets or liabilities during the next 12 months? o Yes!if No I f yes, describe on an attached sheet. 10. Have YOll spent-or will YOll be spending-any money for expenses or attorney fees in conjunction with this lawsuit? 0 Yes &iNo If yes, how much? $ _ _ _ _ _ _ _ __ II. Provide any other information that will help explain why you cannot pay the costs ofthese proceedings. ~.:c. (.\'1\" v\'f\<>,-blL +0 pC.\"'j-H"-lL ~'-T.)() V'\~l\] ~'Q,L. c:....l)'-~"~,,,-\lj kJC \....'.),..l.;;,\c,. \'c.;-.r-..;-.:v'->:::J L.v"'-.(,\ Gv"'-' O'f\ 0...-S;:'Kfl..\ \Y)CoY\l\.l1.. cv"",,,-\ C''.II\. Y\'J\ C..,.\'\\)'((\ \~ \"'\\\('-5-\~'-. 12. Identify the city and state of your legal residence. Camp Verde, AZ Your daytime phone number: (928) 202-8821 Your age: __3_3_ Your years of schooling:

SUMMONS Submitted by Nicole Wetzel. (Submitted by Edward Wicklund)

Case 3:17-cv-08117-BSB Document 3 Filed 06/22/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District __________ of Arizona District of __________))) NICOLE WETZEL) Plaintiff(s))) v. Civil Action No.))) NANCY A. BERRYHILL, ACTING) COMMISSIONER OF SOCIAL SECURITY) Defendant(s)) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) Office of the Regional Chief Counsel, Region X Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 3:17-cv-08117-BSB Document 3 Filed 06/22/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date). u I personally served the summons on the individual at (place) on (date); or u I left the summons at the individual’s residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual’s last known address; or u I served the summons on (name of individual), who is designated by law to accept service of process on behalf of (name of organization) on (date); or u I returned the summons unexecuted because; or u Other (specify):. My fees are $ for travel and $ for services, for a total of $ 0.00. I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc:

Summons

Case 3:17-cv-08117-BSB Document 3-1 Filed 06/22/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District __________ of Arizona District of __________))) NICOLE WETZEL) Plaintiff(s))) v. Civil Action No.))) NANCY A. BERRYHILL, ACTING) COMMISSIONER OF SOCIAL SECURITY) Defendant(s)) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) United States Attorney General Constitution Avenue & 10th St., NW Washington, DC 20530 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 3:17-cv-08117-BSB Document 3-1 Filed 06/22/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date). u I personally served the summons on the individual at (place) on (date); or u I left the summons at the individual’s residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual’s last known address; or u I served the summons on (name of individual), who is designated by law to accept service of process on behalf of (name of organization) on (date); or u I returned the summons unexecuted because; or u Other (specify):. My fees are $ for travel and $ for services, for a total of $ 0.00. I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc:

Summons

Case 3:17-cv-08117-BSB Document 3-2 Filed 06/22/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District __________ of Arizona District of __________))) NICOLE WETZEL) Plaintiff(s))) v. Civil Action No.))) NANCY A. BERRYHILL, ACTING) COMMISSIONER OF SOCIAL SECURITY) Defendant(s)) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) United States Attorney's Office District of Arizona Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 3:17-cv-08117-BSB Document 3-2 Filed 06/22/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date). u I personally served the summons on the individual at (place) on (date); or u I left the summons at the individual’s residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual’s last known address; or u I served the summons on (name of individual), who is designated by law to accept service of process on behalf of (name of organization) on (date); or u I returned the summons unexecuted because; or u Other (specify):. My fees are $ for travel and $ for services, for a total of $ 0.00. I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc:

This case has been assigned to the Honorable Bridget S Bade. All future pleadings or documents should bear the correct case number: CV-17-08117-PCT-BSB. Magistrate Election form attached.

Case 3:17-cv-08117-BSB Document 4 Filed 06/22/17 Page 1 of 1 1 (FOR USE IN CIVIL CASES WITH MAG JUDGE AS PRESIDER) 2 RETURN THIS FORM TO THE CLERK’S OFFICE NOT LATER THAN FOURTEEN (14) DAYS FROM YOUR APPEARANCE IN THIS CASE. 3 Do NOT electronically file this document! 4 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 5) 6) Plaintiff,) 7) Case No. vs.) 8) Defendant.) 9) 10 CONSENT TO EXERCISE OF JURISDICTION BY UNITED STATES MAGISTRATE JUDGE 11 In accordance with provisions of Title 28, U.S.C. Sec. 636(c)(1), the undersigned (party)(counsel of record for 12) in the above-captioned civil matter hereby voluntarily consents to have a United 13 States Magistrate Judge conduct any and all further proceedings in the case, including trial and entry of a final judgment, with direct review by the Ninth Circuit Court of Appeals if an appeal is filed. 14 15 Date: Signature 16 17 Print Name 18 DISTRICT JUDGE OPTION 19 Pursuant to Title 28, U.S.C. Sec. 636(c)(2) the undersigned (party)(counsel of record for) 20 in the above captioned civil matter acknowledges the availability of a United States Magistrate Judge but elects to have this case 21 randomly assigned to a United States District Judge. 22 Date: Signature 23 24 Print Name 25 CERTIFICATE OF SERVICE 26 I hereby certify that a true copy of the foregoing Consent was served (by mail) (by hand delivery) on all parties of record 27 in this case, this day of, 20. 28 Signature

Instructions

Case 3:17-cv-08117-BSB Document 4-1 Filed 06/22/17 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA CONSENT TO EXERCISE OF JURISDICTION BY UNITED STATES MAGISTRATE JUDGE INSTRUCTIONS TO ALL PARTIES ACTION REQUIRED WITHIN 14 DAYS Pursuant to Local Rule of Civil Procedure 3.7(b), all civil cases will be randomly assigned to a U.S. District Court Judge or to a U.S. Magistrate Judge. When a case is filed and assigned to a U.S. Magistrate Judge, consent forms, for all parties, are stamped with a case number and given to the individual who is filing the case. On these forms, consent may be given to the jurisdiction of the magistrate judge by signing the consent section of the form. If all parties consent, the case will remain with the magistrate judge, pursuant to 28:636(c)(1). These cases are assigned to a magistrate judge for all purposes, including trial and final entry of judgment. Any appeal from a judgment entered by the Magistrate Judge may be taken directly to the United States Court of Appeals for the Ninth Circuit in the same manner as an appeal from any other judgment of a district court. Consent to proceed before a Magistrate Judge is voluntary and no adverse consequences of any kind will be felt by any party or attorney who objects to assignment of a case to the Magistrate Judge. The party filing the case is responsible for serving all parties with the consent forms. If any party chooses the district judge option, the case will be randomly reassigned to a U.S. District Court Judge. To elect to have the case heard before a U.S. District Court Judge, the District Judge Option section of the form must be completed. Each party must file the completed consent form and certificate of service with the court no later than 14 days after entry of appearance or the filing of the Notice of Removal. This document should be filed in paper form only and a copy must be served by mail or hand delivery upon all parties of record in the case.

ORDER granting [2] the application for leave to proceed in forma pauperis, without prepayment of costs or fees or the necessity of giving security. Plaintiff shall be responsible for service of the summons and complaint. Signed by Magistrate Judge Bridget S Bade on 6/26/17.

Case 3:17-cv-08117-BSB Document 5 Filed 06/26/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Nicole Wetzel, No. CV-17-08117-BSB 10 Plaintiff, ORDER 11 v. 12 Commissioner of Soc. Sec. Administration, 13 Defendant. 14 15 The court has reviewed Plaintiff’s Application to Proceed in District Court 16 Without Prepaying Fees or Costs (Doc. 2). 17 IT IS ORDERED GRANTING the application for leave to proceed in forma 18 pauperis, without prepayment of costs or fees or the necessity of giving security. 19 Plaintiff shall be responsible for service of the summons and complaint. 20 Dated this 26th day of June, 2017. 21 22 23 24 25 26 27 28

Summons Issued as to Commissioner of Social Security Administration, U.S. Attorney General and U.S. Attorney.

Case 3:17-cv-08117-BSB Document 6 Filed 06/26/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District __________ of Arizona District of __________))) NICOLE WETZEL) Plaintiff(s))) v. Civil Action No.))) NANCY A. BERRYHILL, ACTING) COMMISSIONER OF SOCIAL SECURITY) Defendant(s)) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) Office of the Regional Chief Counsel, Region X Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk ISSUED ON 3:20 pm, Jun 26, 2017 s/Brian D. Karth, Clerk Case 3:17-cv-08117-BSB Document 6 Filed 06/26/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date). u I personally served the summons on the individual at (place) on (date); or u I left the summons at the individual’s residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual’s last known address; or u I served the summons on (name of individual), who is designated by law to accept service of process on behalf of (name of organization) on (date); or u I returned the summons unexecuted because; or u Other (specify):. My fees are $ for travel and $ for services, for a total of $ 0.00. I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc:

Summons

Case 3:17-cv-08117-BSB Document 6-1 Filed 06/26/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District __________ of Arizona District of __________))) NICOLE WETZEL) Plaintiff(s))) v. Civil Action No.))) NANCY A. BERRYHILL, ACTING) COMMISSIONER OF SOCIAL SECURITY) Defendant(s)) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) United States Attorney General Constitution Avenue & 10th St., NW Washington, DC 20530 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk ISSUED ON 3:20 pm, Jun 26, 2017 s/Brian D. Karth, Clerk Case 3:17-cv-08117-BSB Document 6-1 Filed 06/26/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date). u I personally served the summons on the individual at (place) on (date); or u I left the summons at the individual’s residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual’s last known address; or u I served the summons on (name of individual), who is designated by law to accept service of process on behalf of (name of organization) on (date); or u I returned the summons unexecuted because; or u Other (specify):. My fees are $ for travel and $ for services, for a total of $ 0.00. I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc:

Summons

Case 3:17-cv-08117-BSB Document 6-2 Filed 06/26/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District __________ of Arizona District of __________))) NICOLE WETZEL) Plaintiff(s))) v. Civil Action No.))) NANCY A. BERRYHILL, ACTING) COMMISSIONER OF SOCIAL SECURITY) Defendant(s)) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) United States Attorney's Office District of Arizona Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk ISSUED ON 3:21 pm, Jun 26, 2017 s/Brian D. Karth, Clerk Case 3:17-cv-08117-BSB Document 6-2 Filed 06/26/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date). u I personally served the summons on the individual at (place) on (date); or u I left the summons at the individual’s residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual’s last known address; or u I served the summons on (name of individual), who is designated by law to accept service of process on behalf of (name of organization) on (date); or u I returned the summons unexecuted because; or u Other (specify):. My fees are $ for travel and $ for services, for a total of $ 0.00. I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc:

Order that Nicole Wetzel show cause for failure to comply with LRCiv 3.7(b) before Judge G Murray Snow. Show Cause Hearing set for 8/7/2017 at 08:45 AM before Judge G Murray Snow.

Case 3:17-cv-08117-BSB Document 7 Filed 07/11/17 Page 1 of 2 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Nicole Wetzel,) 9) Plaintiff(s),) 10)) CV-17-8117-PCT-BSB 11 v.)) 12 Commissioner of Social Security,) ORDER TO) SHOW CAUSE 13 Defendant(s).)) 14 This action has been assigned to a United States Magistrate Judge pursuant to Local Rule 3.7(b) 15 of the United States District Court for the District of Arizona. Each party is required to execute and file 16 within fourteen days of its appearance either a written consent to the exercise of authority by the 17 magistrate judge under 28 U.S.C. § 636(c), or a written election to have the action reassigned to a 18 district judge. Plaintiff Nicole Wetzel appeared more than fourteen days ago, but has not yet filed 19 the required election form. 20 IT IS ORDERED that if Plaintiff Nicole Wetzel fails to file the appropriate election form 21 by 5:00 p.m. on Friday, July 26, 2017 Plaintiff Nicole Wetzel shall appear1 before Judge G. 22 Murray Snow of the Phoenix Division of this Court in Courtroom No. 602, 6th Floor, at 8:45 a.m. 23 on Monday, August 7, 2017 and show good cause for the failure to comply with Local Rule 3.7(b). 24 The hearing before the Judge will be automatically vacated and the party need not appear if the party 25 files a completed election form by the 5:00 p.m. deadline set forth above. An additional copy of the 26 27 *Incarcerated parties shall appear telephonically and shall make 28 arrangements for such appearance in advance of the hearing. 1 Case 3:17-cv-08117-BSB Document 7 Filed 07/11/17 Page 2 of 2 1 election form is included with this Order. 2 IT IS FURTHER ORDERED that the assignment of this action to the Magistrate Judge 3 remains in effect for all purposes pending completion of the election process. Involvement of the 4 Liaison Judge in this matter is limited to this show cause hearing, unless the magistrate judge 5 assignment is ordered withdrawn pursuant to 28 U. S. C. § 636(b)(1)(A), at which time the case would 6 be randomly reassigned to a district judge. 7 DATED this 11th day of July, 2017. 8 BRIAN D. KARTH 9 District Court Executive/Clerk of Court 10 By: s/M. Pruneau 11 Deputy Clerk 12 13 14 (1/25/05) 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

Instructions

Case 3:17-cv-08117-BSB Document 7-1 Filed 07/11/17 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA CONSENT TO EXERCISE OF JURISDICTION BY UNITED STATES MAGISTRATE JUDGE INSTRUCTIONS TO ALL PARTIES ACTION REQUIRED WITHIN 14 DAYS Pursuant to Local Rule of Civil Procedure 3.7(b), all civil cases will be randomly assigned to a U.S. District Court Judge or to a U.S. Magistrate Judge. When a case is filed and assigned to a U.S. Magistrate Judge, consent forms, for all parties, are stamped with a case number and given to the individual who is filing the case. On these forms, consent may be given to the jurisdiction of the magistrate judge by signing the consent section of the form. If all parties consent, the case will remain with the magistrate judge, pursuant to 28:636(c)(1). These cases are assigned to a magistrate judge for all purposes, including trial and final entry of judgment. Any appeal from a judgment entered by the Magistrate Judge may be taken directly to the United States Court of Appeals for the Ninth Circuit in the same manner as an appeal from any other judgment of a district court. Consent to proceed before a Magistrate Judge is voluntary and no adverse consequences of any kind will be felt by any party or attorney who objects to assignment of a case to the Magistrate Judge. The party filing the case is responsible for serving all parties with the consent forms. If any party chooses the district judge option, the case will be randomly reassigned to a U.S. District Court Judge. To elect to have the case heard before a U.S. District Court Judge, the District Judge Option section of the form must be completed. Each party must file the completed consent form and certificate of service with the court no later than 14 days after entry of appearance or the filing of the Notice of Removal. This document should be filed in paper form only and a copy must be served by mail or hand delivery upon all parties of record in the case.

Consent Form

Case 3:17-cv-08117-BSB Document 7-2 Filed 07/11/17 Page 1 of 1 1 (FOR USE IN CIVIL CASES WITH MAG JUDGE AS PRESIDER) 2 RETURN THIS FORM TO THE CLERK’S OFFICE NOT LATER THAN FOURTEEN (14) DAYS FROM YOUR APPEARANCE IN THIS CASE. 3 Do NOT electronically file this document! 4 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 5) 6) Plaintiff,) 7) Case No. vs.) 8) Defendant.) 9) 10 CONSENT TO EXERCISE OF JURISDICTION BY UNITED STATES MAGISTRATE JUDGE 11 In accordance with provisions of Title 28, U.S.C. Sec. 636(c)(1), the undersigned (party)(counsel of record for 12) in the above-captioned civil matter hereby voluntarily consents to have a United 13 States Magistrate Judge conduct any and all further proceedings in the case, including trial and entry of a final judgment, with direct review by the Ninth Circuit Court of Appeals if an appeal is filed. 14 15 Date: Signature 16 17 Print Name 18 DISTRICT JUDGE OPTION 19 Pursuant to Title 28, U.S.C. Sec. 636(c)(2) the undersigned (party)(counsel of record for) 20 in the above captioned civil matter acknowledges the availability of a United States Magistrate Judge but elects to have this case 21 randomly assigned to a United States District Judge. 22 Date: Signature 23 24 Print Name 25 CERTIFICATE OF SERVICE 26 I hereby certify that a true copy of the foregoing Consent was served (by mail) (by hand delivery) on all parties of record 27 in this case, this day of, 20. 28 Signature

SERVICE EXECUTED filed by Nicole Wetzel: Return of Service re: Summons and Complaint upon US Attorney's Office, Office of General Counsel, Attorney General on 7/18/2017.

Case 3:17-cv-08117-BSB Document 10 Filed 07/27/17 Page 2 of 6 Date Produced: 07/24/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0036 4820 72. Our records indicate that this item was delivered on 07/17/2017 at 01:58 p.m. in PHOENIX, AZ 85004. 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 District of Arizona 2 Renaissance Sq., 40 N. Central Ave. Suite 1200 Phoenix,AZ 85004 Reference Number: Wetzle, N USAO Case 3:17-cv-08117-BSB Document 10 Filed 07/27/17 Page 4 of 6 Date Produced: 07/24/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0036 4821 33. Our records indicate that this item was delivered on 07/18/2017 at 10:35 a.m. in SEATTLE, WA 98104. 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 X, SSA 701 Fifth Avenue, Suite 2900 M/S 221A Seattle,WA 98104 Reference Number: Wetzle, N OGC Case 3:17-cv-08117-BSB Document 10 Filed 07/27/17 Page 6 of 6 Date Produced: 07/24/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0036 4822 01. Our records indicate that this item was delivered on 07/17/2017 at 04:36 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: Wetzle, N AG

NOTICE OF ATTORNEY APPEARANCE: Sarah Martin appearing for Commissioner of Social Security Administration.

Case 3:17-cv-08117-BSB Document 11 Filed 08/17/17 Page 1 of 2 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Sarah L. Martin 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA37068 8 Fax: (206) 615-2531 sarah.l.martin@ssa.gov 9 Telephone: (206) 615-3705 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Nicole Wetzel, 14 No. CV-17-8117-PCT-BSB 15 Plaintiff, 16 DEFENDANT’S NOTICE OF vs. APPEARANCE 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 PLEASE TAKE NOTICE that Defendant Commissioner of Social Security 22 23 hereby notifies Plaintiff and this Court that the following Special Assistant U.S. 24 Attorney will appear as counsel of record in the above-captioned case: 25 Sarah L. Martin 26 Special Assistant United States Attorney 27 Office of the General Counsel Social Security Administration 28 701 Fifth Avenue, Suite 2900 M/S 221A Case 3:17-cv-08117-BSB Document 11 Filed 08/17/17 Page 2 of 2 1 Seattle, WA 98104-7075 State Bar No. WA37068 2 Fax: (206) 615-2531 3 sarah.l.martin@ssa.gov Telephone: (206) 615-3705 4 5 DATED this 17th day of August 2017. 6 Respectfully submitted, 7 ELIZABETH A. STRANGE 8 Acting United States Attorney 9 District of Arizona 10 s/Sarah L. Martin 11 SARAH L. MARTIN Special Assistant United States Attorney 12 13 Of Counsel for the Defendant: 14 MATHEW W. PILE 15 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 16 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 17 18 19 CERTIFICATE OF SERVICE 20 21 I hereby certify that the foregoing Notice of Appearance was filed with the Clerk 22 of the Court on August 17, 2017, using the CM/ECF system which will send notification 23 of such filing to the following: Edward Allen Wicklund. 24 25 s/Timothy Shaw 26 TIMOTHY SHAW Paralegal Specialist 27 Office of the General Counsel 28 2

SCHEDULING ORDER - The parties must comply with the deadlines and procedures contained in LRCiv 16.1 as set forth herein. If either party fails to fully comply with this Order, the Court may strike the non-complying party's brief, dismiss the case, or remand to the agency as appropriate. See Order for details. Signed by Magistrate Judge Bridget S Bade on 8/22/17.

Case 3:17-cv-08117-BSB Document 12 Filed 08/23/17 Page 1 of 4 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Nicole Wetzel, No. CV-17-08117-PCT-BSB 10 Plaintiff, 11 v. SCHEDULING ORDER 12 13 Commissioner of Social Security Administration 14 Defendant. 15 16 17 Pursuant to Federal Rule of Civil Procedure 16(b), the Court enters this 18 Scheduling Order. This action was commenced on June 22, 2017, and the Clerk of Court 19 assigned it to the expedited track, pursuant to Local Rule of Civil Procedure 20 16.2(b)(1)(A)(i). Under LRCiv 16.2(b)(1)(B), the Court sets the deadlines in this social 21 security action without holding a scheduling conference. 22 Accordingly, 23 IT IS ORDERED that the parties must comply with the deadlines and procedures 24 contained in LRCiv 16.1 as set forth in the attachment and incorporated into this Order. 25 Therefore, 26 IT IS FURTHER ORDERED that the parties must comply with the following 27 briefing schedule: 28 Case 3:17-cv-08117-BSB Document 12 Filed 08/23/17 Page 2 of 4 1 1. Within sixty (60) days from the filing of the answer and record, Plaintiff 2 must file an opening brief in the form prescribed by LRCiv 16.1. Failure to timely file 3 the required opening brief may result in dismissal of this matter in accordance with Fed. 4 R. Civ. P. 41(b) and LRCiv. 41.1; 5 2. Within thirty (30) days after service of Plaintiff’s opening brief, Defendant 6 must file an answering brief; 7 3. Plaintiff may file a reply brief within fifteen (15) days after service of 8 Defendant’s answering brief; 9 4. Unless the Court orders otherwise, the opening and answering briefs must 10 not exceed twenty-five (25) pages, including any statement of facts, and the reply brief 11 must not exceed eleven (11) pages; 12 5. Unless the Court orders otherwise, this matter will be deemed submitted 13 and ripe for ruling on the date on which Plaintiff’s reply brief is filed or due. 14 IT IS FURTHER ORDERED that if either party fails to fully comply with this 15 Order, the Court may strike the non-complying party’s brief, dismiss the case, or remand 16 to the agency as appropriate. See Fed. R. Civ. P. 41(b). 17 Dated this 22nd day of August, 2017. 18 19 20 21 22 23 24 25 26 27 28-2-Case 3:17-cv-08117-BSB Document 12 Filed 08/23/17 Page 3 of 4 1 Attachment to Scheduling Order 2 LRCiv 16.1 PROCEDURE IN SOCIAL SECURITY CASES 3 In all cases seeking judicial review of decisions by the Commissioner of Social 4 Security pursuant to 42 U.S.C. § 405(g), the parties must observe the following briefing 5 procedures, rather than filing motions/cross-motions for summary judgment: 6 (a) Opening Brief. Within sixty (60) days after the answer is filed, Plaintiff must 7 file an opening brief addressing why the Commissioner’s decision is not supported by 8 substantial evidence or why the decision should otherwise be reversed or the case 9 remanded. Plaintiff’s opening brief must set forth all errors which Plaintiff contends 10 entitle him or her to relief. The brief must also contain, under appropriate headings and 11 in the order indicated below, the following: 12 (1) A statement of the issues presented for review, set forth in separate numbered 13 paragraphs. 14 (2) A Statement of the Case. This statement should indicate briefly the course of 15 the proceedings and its disposition at the administrative level. 16 (3) A Statement of Facts. This statement of the facts must include Plaintiff’s age, 17 education, and work experience; a summary of the physical and mental impairments 18 alleged; a brief outline of the medical evidence; and a brief summary of other relevant 19 evidence of record. Each statement of fact must be supported by reference to the 20 page in the record where the evidence may be found. 21 (4) An Argument. The argument, which may be preceded by a summary, must be 22 divided into sections separately treating each issue. Each contention must be 23 supported by specific reference to the portion of the record relied upon [by citation 24 to specific page numbers] and by citations to statutes, regulations, and cases 25 supporting Plaintiff’s position. If any requested remand is for the purpose of taking 26 additional evidence, such evidence must be described in the opening brief, and Plaintiff’s 27 argument must show that the additional evidence is material and that there is good cause 28 for the failure to incorporate such evidence into the record in a prior proceeding. If such-3-Case 3:17-cv-08117-BSB Document 12 Filed 08/23/17 Page 4 of 4 1 additional evidence is in the form of a consultation examination sought at Government 2 expense, Plaintiff’s opening brief must make a proffer of the nature of the evidence to be 3 obtained. 4 (5) A Short Conclusion Stating the Relief Sought. 5 (b) Answering Brief. Defendant must file an answering brief within thirty (30) 6 days after service of Plaintiff’s opening brief. Defendant’s brief must (1) respond 7 specifically to each issue raised by Plaintiff and (2) conform to the requirements set 8 forth above for Plaintiff’s brief, except that a statement of the issues, and a statement of 9 the case and a statement of the facts need not be made unless Defendant is dissatisfied 10 with Plaintiff’s statement thereof. 11 (c) Reply Brief. Plaintiff may file a reply brief within fifteen (15) days after 12 service of Defendant’s brief. 13 (d) Length of Briefs. Unless otherwise ordered by the Court, the opening and 14 answering briefs may not exceed twenty-five (25) pages, including any statement of facts, 15 with the reply brief limited to eleven (11) pages. The case will be deemed submitted as 16 of the date on which Plaintiff’s reply brief is filed or due. 17 (e) Oral Argument. If either party desires oral argument, it must be requested in 18 the manner prescribed by Rule 7.2(f) of the Local Rules of Civil Procedure upon the 19 filing of the opening or answering brief. Whether to allow oral argument is at the 20 discretion of the Court. 21 LRCiv 16.1(a)–(e) (emphasis added). 22 23 24 25 26 27 28-4-

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

Case 3:17-cv-08117-BSB Document 16 Filed 09/18/17 Page 1 of 4 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Sarah L. Martin 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA37068 8 Fax: (206) 615-2531 sarah.l.martin@ssa.gov 9 Telephone: (206) 615-3705 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Nicole Wetzel, No. CV-17-08117-PCT-BSB 14 15 Plaintiff, 16 ANSWER vs. 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 Defendant, in answer to Plaintiff’s Complaint, admits, denies, and alleges as 22 follows: 23 1. Defendant admits the allegations in paragraphs 1 and 2. 24 25 2. With respect to paragraph 3, Defendant admits that the Appeals Council 26 issued a notice on April 19, 2017, denying Plaintiff’s request for review. 27 Defendant neither admits nor denies that the copy of the Appeals Council’s 28 Case 3:17-cv-08117-BSB Document 16 Filed 09/18/17 Page 2 of 4 1 notice, which Plaintiff attached to the Complaint as Exhibit A, is a correct 2 or complete copy of that document. 3 3. With respect to paragraph 4, Defendant denies knowledge or information 4 5 sufficient to form a belief as to the truth of Plaintiff’s residence, and neither 6 admits nor denies the accuracy of the last four digits of Plaintiff’s social 7 security number. 8 4. Defendant admits the allegations in paragraph 5. 9 10 5. Paragraphs 6, 7, and 8 call for legal conclusions to which no response is 11 required. To the extent the Court requires a response, Defendant denies the 12 allegations. 13 14 6. The remainder of the Complaint is a prayer for relief to which no response 15 is necessary. To the extent that a response is required, Defendant denies the 16 allegations and states that Plaintiff is not entitled to judgment or to the 17 18 relief sought. 19 7. With respect to Plaintiff’s request for attorney fees under the Equal Access 20 to Justice Act, should Plaintiff prevail and file an application for fees 21 against the United States in accordance with the requirements of 28 U.S.C. 22 23 § 2412, enacted as part of the Equal Access to Justice Act, the 24 Commissioner reserves the right to oppose any award under this statute. 25 8. Defendant denies all allegations of the Complaint not specifically admitted 26 27 or clarified. 28 2 Case 3:17-cv-08117-BSB Document 16 Filed 09/18/17 Page 3 of 4 1 9. In accordance with 42 U.S.C. § 405(g), Defendant files as part of the 2 answer a certified copy of the transcript of the record including the 3 evidence upon which Defendant based the challenged decision. 4 5 WHEREFORE, Defendant prays for judgment dismissing the Complaint, with 6 costs, and for judgment in accordance with 42 U.S.C. § 405(g), affirming Defendant’s 7 decision. 8 DATED this 18th day of September 2017. 9 10 Respectfully submitted, 11 ELIZABETH A. STRANGE 12 Acting United States Attorney District of Arizona 13 14 s/Sarah L. Martin SARAH L. MARTIN 15 Special Assistant United States Attorney 16 17 Of Counsel for the Defendant: 18 MATHEW W. PILE 19 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 20 701 Fifth Avenue, Suite 2900 M/S 221A 21 Seattle, WA 98104-7075 22 23 24 25 26 27 28 3 Case 3:17-cv-08117-BSB Document 16 Filed 09/18/17 Page 4 of 4 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Answer was filed with the Clerk of the 3 Court on September 18, 2017, using the CM/ECF system, which will send 4 5 notification of such filing to the following: Edward Allen Wicklund. 6 7 s/Megan Moore MEGAN MOORE 8 Paralegal Specialist 9 Office of the General Counsel 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

NOTICE of Filing Certified Copy of Administrative Transcript re: [16] Answer to Complaint filed by Commissioner of Social Security Administration.

Case 3:17-cv-08117-BSB Document 17 Filed 09/18/17 Page 1 of 2 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Sarah L. Martin 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA37068 8 Fax: (206) 615-2531 sarah.l.martin@ssa.gov 9 Telephone: (206) 615-3705 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Nicole Wetzel, No. CV-17-08117-PCT-BSB 14 15 Plaintiff, 16 NOTICE OF FILING CERTIFIED vs. ADMINISTRATIVE/TRANSCRIPT 17 OF RECORD Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 PLEASE TAKE NOTICE the Acting Commissioner of the Social Security 22 Administration, by and through Sarah L. Martin, Special Assistant United States 23 Attorney for the District of Arizona, files herein in accordance with section 205(g) of the 24 25 Social Security Act, 42 U.S.C. § 405(g), as part of the answer a certified electronic copy 26 of the transcript of the record including the evidence upon which the findings and 27 decision complained of are based. In addition, a paper copy was delivered to the court. 28 Case 3:17-cv-08117-BSB Document 17 Filed 09/18/17 Page 2 of 2 1 DATED this 18th day of September 2017. 2 3 Respectfully submitted, 4 ELIZABETH A. STRANGE 5 Acting United States Attorney District of Arizona 6 s/Sarah L. Martin 7 SARAH L. MARTIN 8 Special Assistant United States Attorney 9 Of Counsel for the Defendant: 10 MATHEW W. PILE 11 Acting Regional Chief Counsel, Social Security Administration 12 Office of the General Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A 13 Seattle, WA 98104-7075 14 15 16 17 18 CERTIFICATE OF SERVICE 19 20 I hereby certify that the foregoing Notice of Filing Certified 21 Administrative/Transcript of Record was filed with the Clerk of the Court on 22 September 18, 2017, using the CM/ECF system, which will send notification of 23 such filing to the following: Edward Allen Wicklund. 24 25 26 s/Megan Moore MEGAN MOORE 27 Paralegal Specialist 28 Office of the General Counsel 2

Certification Page

Case 3: 17-cv-08117-BSB Document 17-1 Filed 09/18/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PRESCOTT NICOLE WETZEL Plaintiff VS.)) CIVIL ACTION NO. 3: 17-CV-08117-BSB NANCY A. BERRYHILL ACTING COMMISSIONER OF SOCIAL SECURITY Defendant CERTIFICATION The undersigned, as Chief, Court Case Preparation and Review Branch 1, Office of Appellate Operations, Office of Disability Adjudication and Review, Social Security Administration, hereby certifies that the documents annexed hereto constitute a full and accurate transcript of the entire record of proceedings relating to this case. Air NANCY CHUNG Date: August 16, 2017 * * * Certified Administrative Records (CAR) are not compatible with Optical Character Recognition (OCR), therefore the Agency cannot provide a OCR searchable CAR. « Name

Court Transcript Index

Case 3:17-cv-08117-BSB Document 17-2 Filed 09/18/17 Page 1 of 3 Court Transcript Index Civil Action Number: 3:17-CV-08117 Claimant: Nicole Wetzel Account Number: 601-32-0945 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 04/19/2017 1-6 6 AC Correspondence (ACCORR), dated 03/02/2017 7-9 3 AC Correspondence (ACCORR), dated 03/02/2017 10-12 3 Appointment of Representative (1696), dated 01/12/2016 13-14 2 Request for Review of Hearing Decision/Order (HA 520), dated 15-16 2 12/01/2015 ALJ Hearing Decision (ALJDEC), dated 11/13/2015 17-38 22 Appointment of Representative (1696), dated 10/11/2012 39-41 3 Transcript of Oral Hearing (TRANHR), dated 02/12/2015 42-86 45 Exhibits Exhibit No. of No. Description Page No. Pages 1A Disability Determination Transmittal, dated 02/04/2013 87 1 2A Disability Determination Transmittal, dated 02/04/2013 88 1 3A DDE-T2 RFC Gardner, Dan, MD, MRFC Woodson-89-102 14 Johnson, Cheryl, Psy.D includes PRTF, dated 02/04/2013 4A DDE-T16 RFC Gardner, Dan, MD, MRFC Woodson-103-116 14 Johnson, Cheryl, Psy.D includes PRTF, dated 02/04/2013 5A Disability Determination Transmittal, dated 12/02/2013 117 1 6A Disability Determination Transmittal, dated 12/02/2013 118 1 7A DDE-T16 RFC Radkowsky, Allen, MD, MRFC Tomak, 119-138 20 Sheri, Psy.D includes PRTF, dated 12/02/2013 8A DDE-T2 RFC Radkowsky, Allen, MD, MRFC Tomak, Sheri, 139-158 20 Psy.D includes PRTF, dated 12/02/2013 1B Representative Fee Agreement-Brad Myler, dated 159 1 09/23/2012 2B Appointment of Representative-Brad Myler, dated 160 1 09/25/2012 3B T2 Notice of Disapproved Claim, dated 02/07/2013 161-163 3 4B T16 Notice of Disapproved Claim, dated 02/07/2013 164-167 4 5B Request for Reconsideration, dated 03/21/2013 168-169 2 6B T2 Disability Reconsideration Notice, dated 12/02/2013 170-172 3 7B T16 Disability Reconsideration Notice, dated 12/02/2013 173-176 4 8B Request for Hearing by ALJ, dated 12/31/2013 177-178 2 9B Request for Hearing Acknowledgement Letter, dated 179-185 7 01/10/2014 10B Claimant's Change of Address Notification, dated 01/24/2014 186 1 11B Hearing Notice, dated 11/24/2014 187-214 28 12B Resume of Vocational Expert 215-216 2 DATE: August 16, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-08117-BSB Document 17-2 Filed 09/18/17 Page 2 of 3 Court Transcript Index Civil Action Number: 3:17-CV-08117 Claimant: Nicole Wetzel Account Number: 601-32-0945 Exhibits Exhibit No. of No. Description Page No. Pages 13B Representative Fee Agreement, dated 10/29/2014 217 1 14B Appointment of Representative, dated 12/09/2014 218 1 15B Notice Of Hearing Reminder, dated 01/29/2015 219-224 6 1D Application for Disability Insurance Benefits, dated 225-226 2 11/02/2012 2D Application for Supplemental Security Income Benefits, dated 227-232 6 11/02/2012 3D Certified Earnings Records, dated 05/29/2014 233-236 4 4D Detailed Earnings Query, dated 05/29/2014 237-238 2 5D Summary Earnings Query, dated 05/29/2014 239 1 6D Prisoner/Fugitive Felon, dated 05/29/2014 240-243 4 7D New Hire, Quarter Wage, Unemployment Query (NDNH), 244-247 4 dated 05/29/2014 8D New Hire, Quarter Wage, Unemployment Query (NDNH), 248-249 2 dated 02/02/2015 9D Detailed Earnings Query, dated 02/02/2015 250-252 3 1E Disability Report-Field Office, dated 11/02/2012, from Field 253-255 3 Office 2E Disability Report-Adult, dated 11/02/2012, from Clmt 256-262 7 3E 3rd Party Function Report-Adult, dated 12/10/2012, from 263-272 10 Mother 4E Disability Report-Appeals, dated 03/20/2013, from Clmt 273-278 6 5E Disability Report-Field Office, dated 03/21/2013, from Field 279-280 2 Office 6E Function Report-Adult, dated 07/26/2013, from Clmt 281-289 9 7E 3rd Party Function Report-Adult, dated 07/28/2013, from 290-297 8 Mother 8E DDS Disability Worksheet, dated 03/26/2013 to 12/02/2013, 298-302 5 from DDS PHOEN AZ 9E Disability Report-Appeals, dated 12/03/2013, from Clmt 303-308 6 10E Disability Report-Field Office, dated 12/31/2013, from Field 309-310 2 Office 11E Exhibit List-CD to Representative or Claimant Form # HA-L56 311-321 11 (03-200), dated 05/29/2014, from ODAR 12E Representative Correspondence, dated 02/05/2015, from 322-323 2 Myler Disability 13E Notice of Closing the Record 324 1 14E Representative Correspondence, dated 02/27/2015 325-326 2 15E Time to Submit Evidence, dated 03/03/2015 327 1 16E Request for Extension, dated 03/20/2015 328-329 2 DATE: August 16, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-08117-BSB Document 17-2 Filed 09/18/17 Page 3 of 3 Court Transcript Index Civil Action Number: 3:17-CV-08117 Claimant: Nicole Wetzel Account Number: 601-32-0945 Exhibits Exhibit No. of No. Description Page No. Pages 17E Time to Submit Evidence, dated 03/24/2015 330 1 18E Request for Extension, dated 04/06/2015 331-332 2 19E Representative Correspondence, dated 06/25/2015, from 333-334 2 Brad Myler 20E DDS Disability Worksheet, dated 07/31/2015 to 08/07/2015, 335-338 4 from DDS PHOEN AZ 21E Proffer Correspondence, dated 08/07/2015, from ODAR 339-341 3 22E Representative Correspondence 342-346 5 23E Representative Brief, dated 03/27/2017, from Howard Olinsky 347-350 4 1F Hospital Records, dated 06/29/2012 to 08/15/2012, from 351-354 4 Verde Valley Medical Center 2F Office Treatment Records, dated 08/07/2012 to 09/13/2012, 355-363 9 from Hopkins, Elwood, MD 3F Office Treatment Records, dated 11/27/2012, from Albright, 364-372 9 Susan, FNP 4F Mental Capacity Assessment, dated 11/28/2012, from 373-376 4 Albright, Susan, FNP 5F Onset Questionnaire, dated 11/28/2012, from Albright, 377 1 Susan, FNP 6F Emergency Department Records, dated 08/17/2012 to 378-397 20 11/29/2012, from Verde Valley Medical Center 7F CE Psychology, dated 01/10/2013, from Joseph, Colin, Ph.D 398-402 5 8F CE Physical Medicine, dated 01/10/2013, from Mcphee, 403-409 7 Lucia, MD 9F Progress Notes, dated 03/14/2013 to 05/30/2013, from 410-415 6 Hopkins, Elwood, MD 10F Medical Source-No MER Available, dated 07/11/2013, from 416-417 2 Verde Valley Medical Center 11F CE Psychology, dated 11/05/2013, from Joseph, Colin, Ph.D 418-423 6 12F Mental Capacity Assessment, dated 03/28/2014, from 424-427 4 Albright, Susan, FNP 13F Office Treatment Records, dated 11/14/2013 to 06/26/2014, 428-440 13 from Verde Valley Medical Clinic 14F Office Treatment Records, dated 10/16/2012 to 10/31/2014, 441-461 21 from Albright, Susan, RNP 15F Office Treatment Records, dated 06/29/2012 to 07/20/2015, 462-493 32 from Camp Verde Medical Clinic 16F Laboratory Test Report, dated 02/19/2014, from Dignity 494-496 3 Health-St Joseph's Hospital 17F Inpatient Hospital Records, dated 02/19/2014 to 02/26/2014, 497-503 7 from Barrow Neurological Institute DATE: August 16, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable.

Documents Related to Administrative Process Including Transcript of Oral Hearin

Case 3:17-cv-08117-BSB Document 17-3 Filed 09/18/17 Page 1 of 87 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable Civil Action Number: 3:17-CV-08117 Claimant: Nicole Wetzel Account Number: 601-32-0945 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 04/19/2017 1-6 6 AC Correspondence (ACCORR), dated 03/02/2017 7-9 3 AC Correspondence (ACCORR), dated 03/02/2017 10-12 3 Appointment of Representative (1696), dated 01/12/2016 13-14 2 Request for Review of Hearing Decision/Order (HA 520), dated 15-16 2 12/01/2015 ALJ Hearing Decision (ALJDEC), dated 11/13/2015 17-38 22 Appointment of Representative (1696), dated 10/11/2012 39-41 3 Transcript of Oral Hearing (TRANHR), dated 02/12/2015 42-86 45 DATE: August 16, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86

Payment Documents and Decisions

Case 3:17-cv-08117-BSB Document 17-4 Filed 09/18/17 Page 1 of 73 Payment Documents and Decisions Civil Action Number: 3:17-CV-08117 Claimant: Nicole Wetzel Account Number: 601-32-0945 Exhibits Exhibit No. of No. Description Page No. Pages 1A Disability Determination Transmittal, dated 02/04/2013 87 1 2A Disability Determination Transmittal, dated 02/04/2013 88 1 3A DDE-T2 RFC Gardner, Dan, MD, MRFC Woodson-89-102 14 Johnson, Cheryl, Psy.D includes PRTF, dated 02/04/2013 4A DDE-T16 RFC Gardner, Dan, MD, MRFC Woodson-103-116 14 Johnson, Cheryl, Psy.D includes PRTF, dated 02/04/2013 5A Disability Determination Transmittal, dated 12/02/2013 117 1 6A Disability Determination Transmittal, dated 12/02/2013 118 1 7A DDE-T16 RFC Radkowsky, Allen, MD, MRFC Tomak, 119-138 20 Sheri, Psy.D includes PRTF, dated 12/02/2013 8A DDE-T2 RFC Radkowsky, Allen, MD, MRFC Tomak, Sheri, 139-158 20 Psy.D includes PRTF, dated 12/02/2013 DATE: August 16, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158

Jurisdictional Documents and Notices

Case 3:17-cv-08117-BSB Document 17-5 Filed 09/18/17 Page 1 of 67 Jurisdictional Documents and Notices Civil Action Number: 3:17-CV-08117 Claimant: Nicole Wetzel Account Number: 601-32-0945 Exhibits Exhibit No. of No. Description Page No. Pages 1B Representative Fee Agreement-Brad Myler, dated 159 1 09/23/2012 2B Appointment of Representative-Brad Myler, dated 160 1 09/25/2012 3B T2 Notice of Disapproved Claim, dated 02/07/2013 161-163 3 4B T16 Notice of Disapproved Claim, dated 02/07/2013 164-167 4 5B Request for Reconsideration, dated 03/21/2013 168-169 2 6B T2 Disability Reconsideration Notice, dated 12/02/2013 170-172 3 7B T16 Disability Reconsideration Notice, dated 12/02/2013 173-176 4 8B Request for Hearing by ALJ, dated 12/31/2013 177-178 2 9B Request for Hearing Acknowledgement Letter, dated 179-185 7 01/10/2014 10B Claimant's Change of Address Notification, dated 01/24/2014 186 1 11B Hearing Notice, dated 11/24/2014 187-214 28 12B Resume of Vocational Expert 215-216 2 13B Representative Fee Agreement, dated 10/29/2014 217 1 14B Appointment of Representative, dated 12/09/2014 218 1 15B Notice Of Hearing Reminder, dated 01/29/2015 219-224 6 DATE: August 16, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224

Non Disability Related Development

Case 3:17-cv-08117-BSB Document 17-6 Filed 09/18/17 Page 1 of 29 Non Disability Related Development Civil Action Number: 3:17-CV-08117 Claimant: Nicole Wetzel Account Number: 601-32-0945 Exhibits Exhibit No. of No. Description Page No. Pages 1D Application for Disability Insurance Benefits, dated 225-226 2 11/02/2012 2D Application for Supplemental Security Income Benefits, dated 227-232 6 11/02/2012 3D Certified Earnings Records, dated 05/29/2014 233-236 4 4D Detailed Earnings Query, dated 05/29/2014 237-238 2 5D Summary Earnings Query, dated 05/29/2014 239 1 6D Prisoner/Fugitive Felon, dated 05/29/2014 240-243 4 7D New Hire, Quarter Wage, Unemployment Query (NDNH), 244-247 4 dated 05/29/2014 8D New Hire, Quarter Wage, Unemployment Query (NDNH), 248-249 2 dated 02/02/2015 9D Detailed Earnings Query, dated 02/02/2015 250-252 3 DATE: August 16, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252

Disability Related Development

Case 3:17-cv-08117-BSB Document 17-7 Filed 09/18/17 Page 1 of 99 Disability Related Development Civil Action Number: 3:17-CV-08117 Claimant: Nicole Wetzel Account Number: 601-32-0945 Exhibits Exhibit No. of No. Description Page No. Pages 1E Disability Report-Field Office, dated 11/02/2012, from Field 253-255 3 Office 2E Disability Report-Adult, dated 11/02/2012, from Clmt 256-262 7 3E 3rd Party Function Report-Adult, dated 12/10/2012, from 263-272 10 Mother 4E Disability Report-Appeals, dated 03/20/2013, from Clmt 273-278 6 5E Disability Report-Field Office, dated 03/21/2013, from Field 279-280 2 Office 6E Function Report-Adult, dated 07/26/2013, from Clmt 281-289 9 7E 3rd Party Function Report-Adult, dated 07/28/2013, from 290-297 8 Mother 8E DDS Disability Worksheet, dated 03/26/2013 to 12/02/2013, 298-302 5 from DDS PHOEN AZ 9E Disability Report-Appeals, dated 12/03/2013, from Clmt 303-308 6 10E Disability Report-Field Office, dated 12/31/2013, from Field 309-310 2 Office 11E Exhibit List-CD to Representative or Claimant Form # HA-L56 311-321 11 (03-200), dated 05/29/2014, from ODAR 12E Representative Correspondence, dated 02/05/2015, from 322-323 2 Myler Disability 13E Notice of Closing the Record 324 1 14E Representative Correspondence, dated 02/27/2015 325-326 2 15E Time to Submit Evidence, dated 03/03/2015 327 1 16E Request for Extension, dated 03/20/2015 328-329 2 17E Time to Submit Evidence, dated 03/24/2015 330 1 18E Request for Extension, dated 04/06/2015 331-332 2 19E Representative Correspondence, dated 06/25/2015, from 333-334 2 Brad Myler 20E DDS Disability Worksheet, dated 07/31/2015 to 08/07/2015, 335-338 4 from DDS PHOEN AZ 21E Proffer Correspondence, dated 08/07/2015, from ODAR 339-341 3 22E Representative Correspondence 342-346 5 23E Representative Brief, dated 03/27/2017, from Howard Olinsky 347-350 4 DATE: August 16, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350

Medical Records Part 1

Case 3:17-cv-08117-BSB Document 17-8 Filed 09/18/17 Page 1 of 147 Medical Records Civil Action Number: 3:17-CV-08117 Claimant: Nicole Wetzel Account Number: 601-32-0945 Exhibits Exhibit No. of No. Description Page No. Pages 1F Hospital Records, dated 06/29/2012 to 08/15/2012, from 351-354 4 Verde Valley Medical Center 2F Office Treatment Records, dated 08/07/2012 to 09/13/2012, 355-363 9 from Hopkins, Elwood, MD 3F Office Treatment Records, dated 11/27/2012, from Albright, 364-372 9 Susan, FNP 4F Mental Capacity Assessment, dated 11/28/2012, from 373-376 4 Albright, Susan, FNP 5F Onset Questionnaire, dated 11/28/2012, from Albright, 377 1 Susan, FNP 6F Emergency Department Records, dated 08/17/2012 to 378-397 20 11/29/2012, from Verde Valley Medical Center 7F CE Psychology, dated 01/10/2013, from Joseph, Colin, Ph.D 398-402 5 8F CE Physical Medicine, dated 01/10/2013, from Mcphee, 403-409 7 Lucia, MD 9F Progress Notes, dated 03/14/2013 to 05/30/2013, from 410-415 6 Hopkins, Elwood, MD 10F Medical Source-No MER Available, dated 07/11/2013, from 416-417 2 Verde Valley Medical Center 11F CE Psychology, dated 11/05/2013, from Joseph, Colin, Ph.D 418-423 6 12F Mental Capacity Assessment, dated 03/28/2014, from 424-427 4 Albright, Susan, FNP 13F Office Treatment Records, dated 11/14/2013 to 06/26/2014, 428-440 13 from Verde Valley Medical Clinic 14F Office Treatment Records, dated 10/16/2012 to 10/31/2014, 441-461 21 from Albright, Susan, RNP 15F Office Treatment Records, dated 06/29/2012 to 07/20/2015, 462-493 32 from Camp Verde Medical Clinic 16F Laboratory Test Report, dated 02/19/2014, from Dignity 494-496 3 Health-St Joseph's Hospital DATE: August 16, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496

Medical Records Part 2

Case 3:17-cv-08117-BSB Document 17-9 Filed 09/18/17 Page 1 of 8 Medical Records Civil Action Number: 3:17-CV-08117 Claimant: Nicole Wetzel Account Number: 601-32-0945 Exhibits Exhibit No. of No. Description Page No. Pages 17F Inpatient Hospital Records, dated 02/19/2014 to 02/26/2014, 497-503 7 from Barrow Neurological Institute DATE: August 16, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 497 498 499 500 501 502 503

OPENING BRIEF by Nicole Wetzel.

Case 3:17-cv-08117-BSB Document 18 Filed 11/17/17 Page 1 of 26 Edward A. Wicklund Attorney for Plaintiff Admitted Pro Hac Vice One Park Place 300 South State St., Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Facsimile: (315) 701-5781 Email: twicklund@windisability.com IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Nicole Wetzel No. CV-17-08117-BSB Plaintiff, OPENING BRIEF OF PLAINTIFF vs. [Dist. Ariz. Local Rule Civil 16.1(a)] Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant STATEMENT OF THE ISSUES 1. The ALJ’s RFC determination is not supported by substantial evidence because failed to properly consider the opinion evidence in accordance with the regulations. 2. The ALJ’s credibility determination is not supported by substantial evidence because the reasons provided are inconsistent with the evidence of record. STATEMENT OF THE CASE On October 15, 2012, Nicole Wetzel ("Plaintiff") filed applications for Disability Insurance Benefits and Supplemental Security Income, alleging 1 Case 3:17-cv-08117-BSB Document 18 Filed 11/17/17 Page 2 of 26 disability since June 4, 2012 due to epilepsy, recurring seizures, anxiety, and depression. Administrative Transcript ("T") at 89, 103, 119, 139. Plaintiff’s claim was initially denied on February 4, 2013 (T 87-88) and on reconsideration on December 2, 2013 (T 117-18). After a hearing on February 12, 2015 (T 42-86), Administrative Law Judge ("ALJ") Ted W. Armbruster issued a decision denying Plaintiff’s claims on November 18, 2015. T 20-33. In the decision, the ALJ found that Plaintiff meets the insured status requirements through December 31, 2017, and has not engaged in substantial gainful activity since June 4, 2012, the alleged onset date. T 22. He found Plaintiff suffered from the severe impairments of status post motor vehicle accident with seizure disorder, bipolar disorder, depression, and anxiety. T 23. The ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments. T 24. The ALJ determined that Plaintiff has the residual functional capacity ("RFC") to perform work at any exertional level, except she: is limited to frequently climbing ramps and stairs, stooping, kneeling, crouching, and crawling. [She] is limited to occasionally balancing as well as never climbing ladders, ropes, or scaffolds. [She] must avoid moderate exposure to hazards, including unprotected heights and moving machinery. [She] could not perform primarily driving duty jobs, but is able to understand, remember and carry out simple instructions and perform simple routine repetitive tasks. [She] can occasionally interact with the public, co-workers, and supervisors with that supervision being occasional, direct and concrete, but no contact with crowds. 2 Case 3:17-cv-08117-BSB Document 18 Filed 11/17/17 Page 3 of 26 T 26. The ALJ found that Plaintiff could not perform any past relevant work, but she could perform the jobs of router and housekeeper, thus finding her not disabled. T 31-32. On April 19, 2017, the Appeals Council denied review, making the ALJ’s unfavorable decision the final decision of the Commissioner. T 1-6. This action followed. This Court has jurisdiction. 42 U.S.C. §§ 405(g), 1383(c)(3). STATEMENT OF FACTS Plaintiff was 28 years old on the alleged onset date. T 89, 103, 119, 139. She earned a GED and reported past work as a housekeeper and retail manager. T 258. A. Medical Evidence On June 29, 2012, Plaintiff underwent an electroencephalogram ("EEG"). It showed focal sharp and spike activity and polymorphic theta activity, which was abnormal. T 351. The features were consistent, but not specific, with seizure disorder. T 351. On August 7, 2012, Plaintiff treated with neurologist Elwood Hopkins, M.D. She reported she had been in a car accident in June and hit her head on the windshield. T 359. Since then, she had been anxious and worried and had jaw spasms with speech arrests. T 359. Dr. Hopkins assessed probable partial complex seizures with EEG evidence of left temporal focus, and prescribed Lamictal. T 359. He ordered an MRI, which was normal. T 353, 359. On August 17, 2012, Plaintiff presented to Verde Valley Medical Center ("VVMC") after a 3 Case 3:17-cv-08117-BSB Document 18 Filed 11/17/17 Page 4 of 26 seizure witnessed by bystanders. T 395. It occurred when she was walking downhill. T 395. Seizure symptoms were noted to be generalized with loss of consciousness, and her postictal symptom was confusion. T 395. Plaintiff returned to Dr. Hopkins on September 13, 2012, reporting a seizure the previous night which was followed by a second smaller one. T 357. She was tolerating Lamictal at 300mg, but she was still having "spells". T 357. She reported her seizures were triggered by flashing lights and loud bass music. T 357. She was still having muscle spasms. T 357. Dr. Hopkins encouraged her to continue looking for work. T 357. On October 16, 2012, Plaintiff began treatment with Susan Albright, FNP, for help controlling anxiety and depression. T 371. She reported having a seizure the day before, which caused muscle pain. T 371. She admitted to difficulty concentrating and making decisions, sleep disturbance, and lack of social interest. T 371. Ms. Albright assessed seizure disorder and depression, and prescribed analgesics for soreness and Zoloft for depression. T 371-72. In a follow up on November 27, 2012, she reported doing well with Zoloft. T 370. On November 29, 2012, Plaintiff presented to VVMC after having a seizure. T 384. She reported a headache and muscle soreness. T 384. It was noted that she had a seizure the week prior that was seen in the emergency department. T 384. She reported she currently felt out of it and had right sided weakness, which was 4 Case 3:17-cv-08117-BSB Document 18 Filed 11/17/17 Page 5 of 26 normal for her after a seizure. T 384. At one point, she was noted to be "in some form of generalized body action." T 386. She could look at the doctor when asked, and she could answer questions with yes, but she had difficulty trying to say something about her medicine. T 386. Her hands were clenched. T 386. She was given Ativan and went to sleep. T 386. After the history and physical exam, she had another episode that was also treated with Ativan. T 386. She was diagnosed with a seizure disorder and discharged after her condition improved. T 388-89. On March 13, 2013, she returned to Dr. Hopkins, reporting continued seizures about twice per week. T 414. She had moved in with her mother. T 414. Dr. Hopkins noted that seizures were not well controlled, and increased Lamotrigine to 300mg at night and 150mg in the morning. T 414. In a follow up on May 30, 2013, her mother reported continuing seizures, usually every three to six days. T 412. They would last for up to ten minutes. T 412. Plaintiff reported that Naproxen was not helping her muscle pains. T 412. Dr. Hopkins noted that seizures were not responsive to Lamotrigine and he had to consider non-epileptic seizures. T 412. He prescribed Tegretol, with a taper of Lamotrigine once she reached therapeutic levels, and Robaxin for muscle spasms. T 412. He asked Plaintiff to undergo a video EEG. T 412. On November 14, 2013, Plaintiff reported seizures once a week, usually in the late afternoon. T 437. She was tolerating Tegretol. T 437. Dr. Hopkins noted her seizures were still poorly 5 Case 3:17-cv-08117-BSB Document 18 Filed 11/17/17 Page 6 of 26 controlled, so he added a third, smaller dose of Tegretol in the afternoon. T 437. On December 5, 2013, Plaintiff returned to Ms. Albright, reporting her last seizure was five days ago. T 447. She stated that she was afraid to be in public due to her fear of having another seizure, so she isolated herself at home. T 447. She reporting staying in bed every morning until she absolutely needed to get up, having no energy, and feeling no pleasure. T 447. Zoloft was discontinued due to ineffectiveness, and she was prescribed Wellbutrin. T 447. Plaintiff returned to Dr. Hopkins on January 23, 2014, reporting that she was doing better. T 435. She had a seizure in November shortly after her appointment, a partial seizure in December, one during sleep on December 11, another on December 26, and the last one on January 4. T 435. She reported taking Wellbutrin 300mg and she felt off balance and "weird" on the higher dose of Tegretol. T 435. On examination, she had mild dysmetria1 and ataxia.2 Dr. Hopkins noted that Welbutrin at that dosage could cause seizures. T 435. He added Topomax to Plaintiff’s medications. T 435. On January 27, 2014, Plaintiff treated with Ms. Albright to change her medications. T 446. Wellbutrin was discontinued, and Plaintiff was prescribed Venlafaxine. T 446. Between February 19 and February 26, 2014, Plaintiff underwent testing at 1 Dysmetria is an impairment of a voluntary limb, which is a sign of brain dysfunction. BARRON’S DICTIONARY OF MEDICAL TERMS 178 (6th Ed. 2013). 2 Ataxia is the lack of coordination in muscle action, manifested as unsteady movements. Id. at 52 6 Case 3:17-cv-08117-BSB Document 18 Filed 11/17/17 Page 7 of 26 Barrow Neurological Institute. T 498. She did not have any events on days one, three, and five. T 500-01. On day two, hyperventilation produced a slowing of the background and photic stimulation produced driving at various flash frequencies. T 500. On days six and seven, hyperventilation produced slowing of the background, but photic stimulation did not produce driving. T 501. On day four, a clinical event was documented. T 501. During the event, she had irregular twitching movements and was poorly responsive. T 502. Her eyes were closed, she was rigid with irregular twitching, and she had trouble following commands, but she was able to say "I don’t know" when asked what was happening. T 502. The impression was that this was a non-epileptic event. T 502. The generalized slowing of background suggested a generalized encephalopathic process, but the cause was uncertain. T 502. On intellectual testing, she demonstrated low average verbal comprehension and varied memory performance, ranging from low average to moderately impaired recall with both verbal and visual information. T 503. On February 28, 2014, Plaintiff returned to Ms. Albright complaining of a tired and sluggish feeling. T 445. Venlafaxine was increased. T 445. On March 27, 2014, Plaintiff treated with Dr. Hopkins, reporting that she was doing much better on her current treatment regimen. T 433. She reported a few out of body experiences, and Dr. Hopkins noted her seizures were likely non-epileptic. T 433. He explained to her the difference between dissociated fugue, a stress-avoidance-7 Case 3:17-cv-08117-BSB Document 18 Filed 11/17/17 Page 8 of 26 escape mechanism, and epilepsy. T 433. He diagnosed dissociative fugue and continued Plaintiff’s medications. T 433. Plaintiff treated with Ms. Albright on March 28, 2014, reporting her last seizure occurred in mid-February. T 444. However, she complained of absence episodes, where she would zone out and was forgetful. T 444. She and her mother reported frequent frustration with Plaintiff losing things and finding them in places where she did not remember putting them. T 444. On June 26, 2014, Plaintiff treated with Dr. Hopkins, reporting that she was still having seizures. T 430. She would feel weird and hear strange sounds in her head. T 430. He noted she looked well, with no sign of depression. T 430. He began to wean her off Tegretol. T 430. On July 20, 2015, Plaintiff treated with neurologist David Llewellyn, M.D. She reported that sometimes she would wake up seizing. T 465. Her mother reported that she noticed Plaintiff would turn her head and clench her fists for about five minutes, during which she would be unresponsive. T 465. She reported occasional headaches and muscle cramps. T 465. On examination, she had mildly decreased sensation in the distal lower extremities and a mild reduction in deep tendon reflexes in her feet. T 466. He diagnosed other convulsions, and increased Topiramate to 75mg pending a review of the last EEG report. T 466. B. Opinion Evidence On November 28, 2012, Ms. Albright completed a mental capacity assessment 8 Case 3:17-cv-08117-BSB Document 18 Filed 11/17/17 Page 9 of 26 on Plaintiff’s behalf. In her opinion, Plaintiff had marked limitation in the ability to understand and remember simple instructions and extreme limitation in the ability to understand and remember detailed instructions. T 374. She had moderate limitation in the ability to carry out simple instructions, and marked limitation in the ability to carry out detailed instructions. T 374. She had marked limitation in the ability to maintain attention and concentration for extended periods, perform activities within a schedule, maintain attendance, and sustain a routine without extra supervision. T 374. Ms. Albright noted that Plaintiff had poor concentration since her seizures began. T 374. Plaintiff had marked limitation in the ability to work in coordination with others without distraction and perform at a consistent pace. T 375. She had extreme limitation in the ability to complete a normal workday and workweek. T 375. She noted Plaintiff would become anxious in public places. T 375. Plaintiff had marked limitation in the ability to accept instructions and respond to criticism from supervisors because she does not handle criticism well. T 375. She had moderate limitation in the ability to respond to change and extreme limitation in the ability to set realistic goals. T 376. Ms. Albright noted Plaintiff had poor memory related to her seizures and her seizure medications caused a blunted affect. T 376. In her opinion, Plaintiff would miss work more than four days per month. T 375. Plaintiff underwent a consultative psychological examination with Colin R. 9 Joseph, Ph.D., on January 10, 2013. T 398. He did not have any medical records to review. T 398. She reported that she dropped out of school because she felt uncomfortable in social environments, she was uncomfortable in public places and large crowds, and she could not go to the grocery store alone due to anxiety and fear of having a seizure. T 398. She reported ongoing low energy, minimal motivation, variable appetite, and forgetfulness. T 399. Her mother had to keep track of her appointments, call her day and night to remind her to take her medication, and remind her to pick up her daughters. T 399. She reported irritability and impatience with people, and she was easily frustrated. T 399. She had a mildly flattened affect and appeared nervous, with a somewhat depressed mood. T 398, 400. She scored a 30/30 on the mental status examination, but Dr. Joseph noted her depression was moderate in severity. T 400. He stated that the description of her symptoms was consistent with bipolar disorder and mood instability would interfere with her cognitive functioning. T 400. He opined that in a social or performance context, Plaintiff would be preoccupied with her own performance and negative judgement of others. T 401. She would likely need repetition of instructions to learn detailed tasks, maintaining attention and concentration would be effortful, and she would likely respond to criticism with anxiety or irritability and anger. T 401. She was prone to excessive absenteeism and fleeing the work environment. T 401. 10 Plaintiff underwent a second psychological consultative examination with Dr. Joseph on November 5, 2013. She reported that she would not go out in public alone and had isolated herself from her former friends. T 419. She would occasionally go to the store with her mother, but always felt like people were judging her. T 419. She reported depression with intermittent episodes of increased energy and reduced need for sleep. T 419. She complained of worsening concentration, such that she was unable to concentrate long enough to help her daughter with math homework. T 419. She would frequently forget her children’s school activities and her mother continued to prompt her to take her medications. T 419-20. She had a moderately flattened affect and appeared worried and lethargic. T 419. She became tearful when talking about her future. T 420. Her speech was somewhat slowed and monotone, and she seemed more emotionally vulnerable. T 421. She scored a 28/30 on the mental status exam. T 421. She was off on the day of the week by one day, could not perform serial sevens correctly, and spelled world backwards quite slowly. T 421. He again diagnosed bipolar disorder. T 421. Dr. Joseph opined that Plaintiff’s cognitive processes would be interrupted in a social or performance setting, she would need instructions repeated for detailed tasks, maintaining attention and concentration would be effortful, and she would be prone to excessive absenteeism and fleeing work. T 422. He added that she would be prone to panic attacks in a typical work 11 environment. T 422. On March 28, 2014, Ms. Albright completed another mental capacity assessment. T 425. She opined Plaintiff had marked limitation in the ability to understand and remember simple instructions and extreme limitation in the ability to understand and remember detailed instructions. T 425. She had moderate limitation in the ability to perform activities within a schedule and maintain attendance. T 425. She had marked limitation in the ability to carry out simple instructions and sustain a routine without extra supervision, and extreme limitation in the ability to carry out detailed instructions and maintain attention and concentration. T 425. Plaintiff had moderate limitations in the ability to work in coordination with others without distraction, marked limitation in the ability to perform at a consistent pace, and extreme limitation in the ability to complete a normal workday and workweek. T 426. She had moderate limitation in the ability to interact with the public. T 426. She had extreme limitation in the ability to respond to change and set realistic goals. T 427. Ms. Albright opined Plaintiff would miss work more than four times per month. T 426. C. Hearing Testimony3 Plaintiff testified to the following: She takes care of her daughters by getting them up in the morning, helping them with what she knows how to do with 3 Page 20 of the hearing transcript is missing. It is unclear if any pertinent information was contained on that page. 12 homework, and doing their laundry. T 55. She helps with cooking what she can, but her mom does most of the cooking. T 55. She can go shopping with her mom, but only to smaller stores, and her mom goes with her to school activities for her daughters. T 55. She used to volunteer at a food bank (T 61-62), and currently volunteers with Narcotics Anonymous, running two hour long meetings a week. T 63. She went to one dance event and stated "it was very nerve-racking." T 68. One of her friends is trying to help her with her anxiety by taking her out to stores and other places to socialize. T 65. The Vocational Expert ("VE") testified that someone of Plaintiff’s age, education, and work experience, with the ALJ’s determined RFC, could not perform Plaintiff’s past relevant work, but they could perform the jobs of housekeeper and router. T 81. If such an individual needed extra breaks twice per week, there would be no work. T 92. Absenteeism in excess of two days per month and being off task more than ten percent of the workday would also eliminate all work. T 83. Argument Pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), this Court may review the record to determine whether the Commissioner applied the proper legal standards and whether substantial evidence supports the final agency decision to deny Plaintiff benefits. Substantial evidence means more than a scintilla, "[i]t means such 13 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)). An individual is considered disabled for purposes of disability benefits if she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). 1. The ALJ’s RFC determination is not supported by substantial evidence because failed to properly consider the opinion evidence in accordance with the regulations. RFC is the most a person can still do despite her impairments. 20 C.F.R. §§ 404.1545, 416.945; Social Security Ruling ("SSR") 96-8p. "RFC is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis…A'regular and continuing basis’ means 8 hours a day, for 5 days a week." SSR 96-8p (emphasis in original). The RFC must be assessed based on all relevant evidence, including symptoms and medical source statements. Id. The ALJ must evaluate every opinion in the record, including opinions from sources who are not "acceptable medical sources." SSR 06-3p. Examining sources are entitled to more weight than non-examining sources. 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1). More weight 14 should be given to opinions that are more consistent with the record as a whole. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). The ALJ determined Plaintiff can perform work at any exertional level, but she was restricted to simple, routine, repetitive tasks and only occasional social interaction. T 25-26. In reaching this conclusion, the ALJ accorded partial weight to the opinions of the non-examining state agency psychological consultants because they were consistent with the totality of the record, but Plaintiff was more limited than they opined. T 28. He accorded little weight to the limitations opined by Dr. Joseph because they were inconsistent with the medical evidence and the mental status examinations he conducted, and they were based primarily on Plaintiff’s complaints and behavior. T 28. The ALJ accorded little weight to Ms. Albright’s opinions because they were inconsistent with the evidence and each other, and she did not provide a reason for changing her opinion. T 29. The ALJ’s assignment of weight to these opinions is not supported by the record as a whole and is contrary to law and the regulations. "If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). "The ALJ can meet this burden by setting out a detailed and 15 thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Vieyra v. Barnhart, 70 F. App’x 973, 975 (9th Cir. 2003) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The ALJ rejected the opinion of examining Dr. Joseph and treating Ms. Albright because their opinions were inconsistent with the record as a whole. T 28-30. This reason is not the "specific and legitimate reasons supported by substantial evidence" required under the law of this Circuit. Garrison, 759 F.3d at 1012. The ALJ failed to consider that their opinions were consistent with each other and showed a deterioration of Plaintiff’s mental condition over time. Therefore, contrary to the ALJ’s reasoning, the record as a whole supports the opinions. In their initial assessments, both Dr. Joseph and Ms. Albright concluded that Plaintiff would be limited in her ability to learn detailed tasks. T 374, 401. Both opined Plaintiff would have significant limitation in the ability to maintain attention and concentration. T 374, 401. Ms. Albright opined that Plaintiff would be distracted by coworkers, while Dr. Joseph opined that Plaintiff would be preoccupied with her own performance and negative judgment of others. T 375, 401. Both opined that she would have difficulty accepting criticism from supervisors. T 375, 401. Both opined she would be prone to absenteeism. T 375, 16 401. These opinions are clearly consistent with each other, and the later opinions are also consistent, documenting a decline in Plaintiff’s mental functioning. In the later assessments, both Dr. Joseph and Ms. Albright opined that Plaintiff would have difficulty learning detailed instructions. T 422, 425. Both opined she would have significant difficulty with maintaining attention and concentration. T 422, 425. Dr. Joseph opined Plaintiff would likely have panic attacks in a typical work environment, while Ms. Albright opined Plaintiff had extreme limitation in the ability to complete a normal workday and workweek without interruption from psychologically based symptoms. T 422, 426. Ms. Albright opined Plaintiff would have difficulty working in coordination with others, while Dr. Joseph opined that Plaintiff would be preoccupied with her own performance and judgment of others in a social or performance setting. T 422, 426. Lastly, both opined Plaintiff would have difficulties with excessive absenteeism. T 422, 426. Again, these later opinions are consistent with each other, which calls into question the ALJ’s determination that they were not consistent with the record as a whole. Further, the ALJ claimed that these opinions were inconsistent with the totality of the record, but the only inconsistent evidence was the opinions of the non-examining state agency doctors. "[A] nonexamining physician’s opinion is, without more, not substantial evidence to reject the opinion of a[n] [examining] physician." Pena v. Astrue, CV 08-615-TUC-RCC, 2010 WL 94104, at *11 (D. 17 Ariz. Jan. 6, 2010) (citing Lester v Chater, 81 F.3d 821, 831 (9th Cir. 1995); Pitzer v. Sullivan, 908 F.2d 502, 506 n. 4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)). In Pena, the Court remanded the case for an award of benefits because the ALJ relied on the opinions of the non-examining physicians despite an "extensive and remarkably consistent record" that supported a treating physician’s disabling limitations. Pena, 2010 WL 94104, at *11, 17. A similar situation exists in this case. The record supports the opinions of both examining sources, and the only contrary evidence lies in the opinions of two non-examining physicians. This error results in an RFC determination and ultimate finding of non-disability unsupported by substantial evidence. The ALJ committed further errors by providing other reasons for the rejection of the opinions that are not supported by the evidence. The ALJ rejected Ms. Albright’s opinions because they were inconsistent with each other and she did not provide any reasons for the change in her opinion. T 29. However, as discussed above, both her opinion and Dr. Joseph’s opinion showed a decline in mental functioning. Dr. Joseph’s evaluation shows that Plaintiff’s ability to concentrate declined. During the evaluation, Plaintiff did not give the correct day of the week, she could not perform serial sevens correctly, and she spelled world backwards slowly, showing the decrease in her ability to concentrate. T 421. Dr. Joseph also noted that Plaintiff had a moderately flattened affect, appeared worried and 18 lethargic, her speech was slowed and monotone, and she seemed more emotionally vulnerable. T 419, 421. In his first evaluation, he noted that Plaintiff had a mildly flattened affect, a depressed mood, and she appeared nervous, but she scored a 30/30 on the evaluation. T 398, 400. The results of the second evaluation and Dr. Joseph’s observations prove that Plaintiff’s condition declined, supporting the difference between Ms. Albright’s opinions. Other evidence of record also supports the decline in Plaintiff’s mental functioning. When Plaintiff began treatment with Ms. Albright on October 16, 2012, she reported difficulty concentrating, making decisions, and a lack of social interest. T 371. In March of 2013, she had to move in with her mother. T 414. By December of 2013, she was afraid to be in public and isolated herself at home. T 447. She had no energy and stayed in bed until she had to get up, and reported feeling no pleasure. T 447. In March of 2014, Dr. Hopkins diagnosed Plaintiff with dissociative fugue, a "stress-avoidance-escape mechanism." T 433. The treatment record as a whole shows that Plaintiff’s mental condition declined, supporting the difference between Ms. Albright’s initial and later opinions. The ALJ further erred by rejecting Dr. Joseph’s opinion because it was based on Plaintiff’s subjective complaints and behavior during his examination. T 28. In the context of mental impairments, this is not an appropriate reason to reject an opinion. "[T]he rule allowing an ALJ to reject opinions based on self-reports does 19 not apply in the same manner to opinions regarding mental illness." Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). "Psychiatric evaluations may appear subjective, especially compared to evaluation in other medical fields. Diagnoses will always depend in part on the patient’s self-report, as well as on the clinician’s observations of the patient." Id. "[A]n ALJ does not provide clear and convincing reasons for rejecting an examining physician’s opinion by questioning the credibility of the patient’s complaints where the doctor does not discredit those complaints and supports his ultimate opinion with his own observations." Ryan, 528 F.3d at 1199-200 (citing Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001)). If the examining psychologist did not find that Plaintiff was malingering or being deceptive, the ALJ cannot reject the opinion because it is based, in part, on Plaintiff’s complaints. Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1300 (9th Cir. 1999). In this case, the ALJ could not reject Dr. Joseph’s opinion of the limitations caused by Plaintiff’s mental condition because it was based on her complaints and his observations. Dr. Joseph specifically stated in both opinions that there was no evidence of malingering or inconsistency. T 400, 420. The ALJ has failed to provide a clear and convincing reason for rejecting the opinion based on Plaintiff’s credibility. Regennitter, 166 F3d at 1300; Ryan, 528 F.3d at 1199-200. A psychologist must rely on his own observations when evaluating a person’s mental 20 health, which renders the ALJ’s rejection of Dr. Joseph’s opinion because it was based on his observations legally insufficient. Buck, 869 F.3d at 1049. The ALJ’s analysis of the opinion evidence in this case was contrary to law and the regulations. He failed to provide legally sufficient reasons, supported by the evidence, for the rejection of the examining source opinions in favor of the non-examining source opinions. The ALJ’s error is harmful, as the VE testified that if Plaintiff’s difficulties with concentration caused her to be off task ten percent of the day, or if she missed work twice a month due to her mental impairment, she would be unable to work. T 83. The credit as true rule in this Circuit allows the Court to remand the case for a calculation of benefits when, as here, the ALJ rejects an opinion, he failed to provide legally sufficient reasons for the rejection, the record has been fully developed such that further proceedings would provide no useful purpose, and, if the rejected opinion were taken as true, the ALJ would have to find Plaintiff disabled on remand. Garrison, 759 F.3d at 1019; Ryan, 528 F.3d at 1202. Had the ALJ credited the consistent opinions of Dr. Joseph and Ms. Albright, he would have found Plaintiff disabled according to the VE’s testimony. T 83. Therefore, this case should be remanded for a calculation of benefits. In the alternative, if the Court decides that further development is needed, this case should be remanded for a proper consideration of the opinion evidence and RFC. 21 2. The ALJ’s credibility determination is not supported by substantial evidence because the reasons provided are inconsistent with the evidence of record. When there is a medically determinable impairment that can reasonably be expected to produce the symptoms complained of, it is necessary for the ALJ to determine how those symptoms limit the ability to work. 20 C.F.R. §§ 404.1529(c), 416.929(c). In making that determination, the ALJ cannot reject statements concerning symptoms solely because there is no objective medical evidence. Id. The ALJ must consider conflicts between statements and all other evidence in the record. Id. The reasons for the credibility finding must be grounded in evidence. SSR 96-7p. The ALJ determined that Plaintiff was not credible because her statements were inconsistent with the evidence, she had low and inconsistent earnings, and she made inconsistent statements. T 27, 30. None of these reasons are supported by the evidence. As discussed at length in Argument 1, the evidence shows that Plaintiff’s mental condition deteriorated. Both Dr. Joseph and Ms. Albright opined that Plaintiff would have difficulty meeting the demands of work based on her mental impairments. Their opinions were supported by the longitudinal record, and support Plaintiff’s allegations of disabling mental limitations. 22 While the ALJ correctly stated that he can consider Plaintiff’s work history (T 30), in this case, it does not support his determination that Plaintiff’s allegations are incredible. Plaintiff first worked in 1999-2000, when she was only sixteen or seventeen. T 236. She stopped working until 2004, when she was 21. T 237. Plaintiff’s earnings record does not show any earnings in 2006, but Plaintiff stated that she moved back to Arizona from Pennsylvania. T 52. The earnings record supports her claim, as Giant Food Stores is in Pennsylvania. T 237. Starting in 2007, Plaintiff continuously worked at Family Dollar until 2012, when she claimed she became disabled. T 237-38. Therefore, her earnings record supports that she worked for most of her adult life up until the time she claimed disability began. The ALJ’s determination her earnings record shows a lack of motivation is erroneous and not based on the evidence. The ALJ’s finding that Plaintiff made inconsistent statements is likewise erroneous. The ALJ claimed that Plaintiff’s ability to be a parent, walk her dog, help with homework, do laundry, and help with chores are inconsistent with her claim of disability. T 30. However, "the mere fact that a plaintiff has carried on certain daily activities... does not in any way detract from her credibility as to her overall disability." Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)) (internal quotations omitted). In order to use daily activities to discredit Plaintiff’s testimony, the ALJ 23 must find that her activities contradict her testimony or the activities are transferrable to a work setting. Orn, 495 F.3d at 639. Neither ground is present in this case. Therefore, the ALJ could not use these activities to discredit Plaintiff’s allegations. The ALJ claimed that Plaintiff’s ability to attend school meetings for her daughters, shop with family, use a phone, go for walks, attend church, and volunteer at Narcotics Anonymous are inconsistent with her claims that she cannot go anywhere alone due to social phobia. T 30. However, Plaintiff testified that her mother goes with her to school meetings and to the store. T 55. She goes for walks with her daughters. T 61. She goes to church with her family. T 61. She is able to attend Narcotics Anonymous meetings regularly because they are small and she knows the people there quite well. T 64. Plaintiff’s statements that she goes out with other people is not inconsistent with her claims that she cannot go out alone due to social phobia. Her ability to use her phone has absolutely nothing to do with her ability to leave her house. Therefore, the ALJ’s determination that Plaintiff’s statements were inconsistent with her abilities is clearly erroneous. Lastly, the ALJ claimed that Plaintiff was not truthful about her drug use because she stated she was clean over three years, but she had a drug conviction in 2013. T 30. However, looking at the court record, the charges against her began in 2012, three years before the hearing. T 242. Again, there is no inconsistency. 24 The ALJ’s rejection of Plaintiff’s allegations is not supported by substantial evidence. Plaintiff did not make inconsistent statements. Her earnings record shows a strong work history considering her age. As a result, the ALJ’s credibility finding is not supported by substantial evidence. Conclusion For the foregoing reasons, it is respectfully requested this matter be remanded for a calculation of benefits. Alternatively, if the Court determines further proceedings are necessary, it is requested that the case be remanded for a de novo hearing and new decision. Respectfully submitted,/s/Edward A. Wicklund Edward A. Wicklund, Esq. Attorney for Plaintiff Olinsky Law Group One Park Place 300 South State St., Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Email: twicklund@windisability.com 25 CERTIFICATE OF SERVICE I hereby certify that on November 17, 2017, I electronically filed Plaintiff’s reply brief with the Clerk of the District Court using the CM/ECF system, which sent notification of such filing to the following: To: Elizabeth A. Strange Acting United States Attorney District of Arizona Sarah L. Martin Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 State Bar No. WA37068 Fax: (206) 615-2531 sarah.l.martin@ssa.gov Telephone: (206) 615-3705/s/Edward A. Wicklund Edward A Wicklund, Esq. Attorney for Plaintiff 26

RESPONSE BRIEF by Commissioner of Social Security Administration.

5 1 Elizabeth A. Strange First Assistant United States Attorney 2 District of Arizona 3 Sarah L. Martin 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA37068 8 Fax: (206) 615-2531 sarah.l.martin@ssa.gov 9 Telephone: (206) 615-3705 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Nicole Wetzel, 14 No. CV-17-08117-PCT-BSB 15 Plaintiff, 16 DEFENDANT'S BRIEF vs. 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 22 INTRODUCTION 23 Plaintiff, Nicole Wetzel, seeks judicial review of the final administrative decision 24 25 of the Commissioner of Social Security denying her applications for a period of 26 disability, disability insurance benefits, supplemental security income under Titles II and 27 XVI of the Social Security Act (Tr. 20-32). This Court should affirm the 28 5 1 Commissioner's final decision because it is supported by substantial evidence and free of 2 legal error. 3 ISSUES 4 5 1. Whether the administrative law judge (ALJ) reasonably weighed the medical 6 evidence. 7 2. Whether the ALJ reasonably weighed Wetzel's testimony. 8 STATEMENT OF FACTS 9 10 The ALJ applied the five-step sequential evaluation process for determining 11 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, the 12 ALJ found that Wetzel did not engage in substantial gainful activity since her alleged 13 14 onset date of disability, June 4, 2012 (Tr. 2). At step two, the ALJ found that Wetzel's 15 severe impairments were seizure disorder, bipolar disorder, depression, and anxiety (Tr. 16 23). At step three, the ALJ found that Wetzel did not have an impairment or combination 17 18 of impairments that met the requirements of a listed impairment (Tr. 24). 19 The ALJ found that Wetzel had the residual functional capacity to perform a full 20 range of work at all exertional levels with postural and hazard limitations. She could 21 perform simple, routine, repetitive tasks; occasionally interact with others; and have no 22 23 contact with crowds (Tr. 25-26). Given these limitations, and based on the vocational 24 expert's testimony, the ALJ found that Wetzel could perform other jobs existing in 25 significant numbers in the national economy, including router and housekeeper (Tr. 31- 26 27 32). Accordingly, the ALJ concluded that she was not disabled from June 24, 2012 28 through the date of the decision (Tr. 32). 2 5 1 STANDARD OF REVIEW 2 The Commissioner's findings are conclusive if supported by substantial evidence. 3 42 U.S.C. § 405(g) (sentence five). There is substantial evidence when "the record, read 4 5 as a whole, yields such evidence as would allow a reasonable mind to accept the 6 conclusions reached by the ALJ." Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 7 1984) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). The Court may not 8 remand based on error that is harmless. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 9 10 2012) (citing Shinseki v. Sanders, 556 U.S. 396, 407 (2009)). To show harm, the 11 appealing party bears the burden to demonstrate that an error likely affected the outcome 12 of the case. Ludwig, 681 F.3d at 1054. 13 14 ARGUMENT 15 A. The ALJ reasonably weighed the medical evidence, including the opinions 16 about Wetzel's functioning. 17 The ALJ weighed the medical opinions and explained the weight he assigned the 18 evidence (Tr. 27-30). The ALJ is responsible for resolving conflicts in medical testimony 19 and resolving ambiguities in the evidence. Edlund v. Massanari, 253 F.3d 1152, 1156 20 21 (9th Cir. 2001). According to the agency's regulations, the ALJ must "explain in the 22 decision the weight given to the opinions" of all acceptable medical sources. 20 C.F.R. § 23 404.1527(e)(2)(ii). For treating source opinions, the ALJ must give "good reasons" for 24 25 the weight given. Social Security Ruling (SSR) 96-2p, available at 1996 WL 374188, at 26 *5. The Ninth Circuit has held that an ALJ may reject a contradicted medical opinion by 27 providing "specific and legitimate" reasons, supported by substantial evidence, for doing 28 3 5 1 so. Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 2 Wetzel challenges the weight the ALJ assigned to the following opinions. 3 1. Susan Albright, nurse practitioner. 4 5 The ALJ weighed Ms. Albright's opinions and reasonably gave them little weight 6 (Tr. 29). An ALJ needs to provide only germane reasons for discounting an opinion from 7 an "other source," such as a nurse practitioner. Molina v. Astrue, 674 F.3d 1104, 1111 8 (9th Cir. 2012). Acceptable reasons for discounting an other source opinion include that 9 10 the opinion is inconsistent with other medical evidence in the record and inconsistent 11 with other evidence of the claimant's functioning. Id. at 1111-12; Jamerson v. Chater, 12 112 F.3d 1064, 1066-67 (9th Cir. 1997). Further, "[t]he fact that a medical opinion is 13 14 from an 'acceptable medical source' is a factor that may justify giving that opinion 15 greater weight than an opinion from a medical source who is not an 'acceptable medical 16 source.'" SSR 06-03p at *5. The ALJ met these standards. 17 18 Ms. Albright treated Wetzel only twice before rendering an opinion about her 19 functional abilities (Tr. 370-72, 377). The first time, Ms. Albright noted Wetzel's 20 subjective allegations of recent seizures, but the physical and neurological examinations 21 were normal (aside from some neck/shoulder tenderness) (Tr. 371). Wetzel appeared 22 23 healthy, was in no acute distress, and had good hygiene (Tr. 371). Her mental status 24 examination was completely normal. That is, Wetzel was alert, attended well, showed 25 appropriate affect, was fully oriented, had logical and relevant thoughts, demonstrated 26 27 good insight and judgment, spoke clearly and fluently, and had intact recent and remote 28 memory (Tr. 371). 4 5 1 The following month, Wetzel saw Ms. Albright to follow-up regarding a skin 2 infection and possibly increasing her Zoloft, as well as to have disability paperwork 3 completed (Tr. 370). Ms. Albright noted no positive objective findings on examination, 4 5 and Wetzel was able to perform a three-step command (Tr. 370). The same day, Ms. 6 Albright completed the disability paperwork (Tr. 370), concluding that Wetzel had 7 several marked and extreme mental limitations (Tr. 374-75). The findings that 8 purportedly supported her assessment were: (1) Wetzel "becomes anxious in public 9 10 places"; (2) she "does not accept criticism well"; and (3) she had a poor memory due to 11 epilepsy (Tr. 374-75). She thought these limitations dated back to October 2012, the date 12 she first treated Wetzel, when mental status testing was entirely normal, including the 13 14 tests for memory (Tr. 377; see Tr. 371). 15 Ms. Albright continued to treat Wetzel, noting normal findings on examination 16 (Tr. 445-47). In March 2014, she completed a second check-box form indicating several 17 18 marked and extreme mental limitations (Tr. 425-27). She also wrote a note that Wetzel 19 was "unable to work" due to epilepsy (Tr. 449). 20 The ALJ gave these opinions little weight because they were inconsistent with the 21 totality of the evidence and inconsistent with one another (Tr. 29). An ALJ properly 22 23 considers whether there are inconsistencies within opinions and whether those 24 inconsistencies justify discounting the opinion. Morgan, 169 F.3d at 603; see also 25 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992) ("[Dr. Lafrance] 26 27 first stated that he considered Matney markedly limited with respect to lifting, twisting, 28 etc., and later stated that Matney had a moderate level of disability relative to lifting. . . . 5 5 1 Insofar as the ALJ rejected the opinions expressed by Dr. Lafrance, the inconsistencies 2 and ambiguities noted by the ALJ represent specific and legitimate reasons for doing 3 so."). For instance, in November 2012, Ms. Albright thought that Wetzel had no 4 5 limitations in four areas of social limitation and a marked limitation in responding to 6 criticism from supervisors (apparently based on Wetzel's self-reports) (Tr. 375). Then in 7 March 2014, without any explanation, Ms. Albright found slight limitations in three areas 8 of social functioning (including accepting criticism from supervisors), and a moderate 9 10 limitation in the ability to interact with the public (Tr. 426). 11 These do not, as Wetzel argues, reflect a worsening of Wetzel's impairment, but 12 rather unexplained and inconsistent findings. For example, there is nothing to support 13 14 that Wetzel went from having a marked limitation in accepting criticism to only a slight 15 one, while having increased social limitations in other areas. In the absence of any 16 objective findings whatsoever to explain any of Ms. Albright's conclusions, the ALJ 17 18 reasonably rejected them. Indeed, her conclusions are starkly inconsistent with her 19 mental status examinations showing normal mental functioning in all areas (Tr. 370-71, 20 445-47). 21 Ms. Albright's opinions were also inconsistent with other evidence of Wetzel's 22 23 mental functioning, which the ALJ discussed (Tr. 27, 29). For instance, Wetzel scored 24 normally (and perfectly, in one instance), on her two mental status examinations with 25 Colin Joseph, Ph.D. (Tr. 400, 421), and other mental examinations in the record were 26 27 normal and showed no cognitive defects from seizures (Tr. 465). In June 2014, her 28 treating provider noted that she appeared "well, awake, alert, smiling and not at all 6 5 1 depressed appearing" (Tr. 27, 430). In contrast with Ms. Albright's conclusion that 2 Wetzel's seizures were quite limiting, her MRI was normal (Tr. 353), her seizures were 3 deemed to be non-epileptic and possibly psychogenic in nature (Tr. 433, 466), and one 4 5 provider noted that she had very little follow-up for her seizures, which should be 6 controllable with medication (Tr. 404; see also Tr. 437 (she did not make an appointment 7 for epilepsy monitoring)). Finally, examining physician Lucia McPhee, M.D., found no 8 objective findings sufficient to justify restricting Wetzel's work activities, aside from 9 10 avoiding hazards and driving (Tr. 405). Because Ms. Albright's opinions were 11 inconsistent with the other evidence in the record, the ALJ provided germane reasons for 12 discounting them. 13 14 In addition, the ALJ rejected Ms. Albright's conclusory remark that Wetzel was 15 disabled, because that is an issue reserved to the Commissioner (Tr. 29, 449). "We are 16 responsible for making the determination or decision about whether you meet the 17 18 statutory definition of disability. . . . A statement by a medical source that you are 19 'disabled' or 'unable to work' does not mean that we will determine that you are 20 disabled." 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1). "We will not give any special 21 significance to the source of an opinion on issues reserved to the Commissioner." 20 22 23 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3). Wetzel does not appear to take issue with this. 24 Because the ALJ provided germane reasons for discounting Ms. Albright's unsupported 25 opinions, the finding should be affirmed. 26 27 2. Colin Joseph, Ph.D. 28 Dr. Joseph examined Wetzel twice for disability purposes, but the ALJ gave his 7 5 1 opinions only partial weight (Tr. 28). Dr. Joseph did not have any medical or mental 2 health records to review, so his opinions were based solely on his examinations (Tr. 398). 3 On both examinations, Wetzel denied any issues with chemical dependency, despite the 4 5 fact that she has a history of meth addiction (Tr. 399, 420; see Tr. 371). Dr. Joseph 6 extensively reported Wetzel's subjective allegations. Wetzel performed perfectly and 7 almost perfectly on the mental status examinations, respectively1 (Tr. 400, 421). Her 8 presentation was similar on both exams (Tr. 421). 9 10 Regarding understanding and memory, Dr. Joseph admitted that Wetzel did not 11 exhibit problems on the examinations, but he nevertheless thought that she would likely 12 be preoccupied by her anxiety in the workplace and "might" require repetition of 13 14 instructions to learn new detailed tasks (Tr. 401, 421). Similarly, maintaining 15 concentration might be "effortful" for her due to her feelings of anxiety (Tr. 401, 421). 16 Regarding social interactions, Dr. Joseph thought she "might" respond to critical 17 18 feedback with irritability and anger, and she would be prone to "fleeing" the work 19 environment because of her preoccupation with possible judgment from others (Tr. 401, 20 422). Finally, he concluded that she "might" be slow to recognize workplace hazards due 21 to her preoccupations and anxiety (Tr. 401, 422). 22 23 To the extent that Dr. Joseph's opinions about specific functional limitations were 24 25 26 1 The mental status examination (MSE) "is perhaps a physician's best tool for uncovering 27 inapparent neuropsychiatric impairment." Paula T. Trzepacz and Robert W. Baker, The Psychiatric Mental Status Examination 5 (Oxford University Press 1993). "Like the 28 physical examination, the MSE is termed the objective portion of the patient evaluation. . . .1" Id. at 4 (emphasis in original). 8 5 1 inconsistent with the ALJ's findings,2 the ALJ gave them little weight because they were 2 inconsistent with the record and with his own testing, and they appeared to be based 3 primarily on Wetzel's statements (Tr. 28). An ALJ is not required to accept a medical 4 5 opinion that is based primarily upon the claimant's self-reports, which the ALJ found not 6 credible. Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010) (applying 7 this reasoning to a medical opinion regarding mental limitations). Dr. Joseph essentially 8 admitted that his opinion was based on Wetzel's self-reports, and not his own testing, 9 10 when he acknowledged that the test results were normal and yet concluded that she would 11 be preoccupied by her feelings to the point of struggling with instruction follow-up. 12 There is simply no evidence of this, aside from her own complaints. In the absence of 13 14 any objective findings to support his opinion or records to review, the ALJ reasonably 15 concluded that Dr. Joseph relied primarily on Wetzel's statements, which the ALJ found 16 not reliable for many good reasons (discussed below). 17 18 Wetzel faults the ALJ for instead relying on the State agency expert opinions, 19 despite a consistent record supporting disability. Pl's Br. at 18. On the contrary, the 20 record does not consistently support a finding of disability. As discussed above and 21 throughout the ALJ's decision, treatment records (including normal examinations and 22 23 24 2 An opinion that someone would have some unspecified difficulty performing an activity 25 is not particularly helpful in evaluating a claimant's residual functional capacity because it does not say what the person is precluded from doing and what she can still do despite 26 her limitations. See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 691 (9th Cir. 2009) (doctor's recommendation that the claimant would be less likely to have difficulty 27 with tasks with low cognitive demand did not equate to an opinion that the claimant was incapable of working except under the recommended condition). Dr. Joseph's opinions 28 appear to be equivocal statements about Wetzel having some level of self-reported difficulty with certain tasks. 9 5 1 imaging studies for Wetzel's alleged seizures), the physical consultative examination 2 report, both Dr. Joseph's and Ms. Albright's normal test results, and Wetzel's lack of 3 mental health counseling and other follow-up treatment, all support the State agency 4 5 opinions and the ALJ's findings that Wetzel could perform a range of simple work. Dr. 6 Joseph's and Ms. Albright's opinions appear to merely repeat Wetzel's allegations of 7 mental health symptoms. However, "An ALJ cannot be required to believe every 8 allegation of disabling pain, or else disability benefits would be available for the asking, a 9 10 result plainly contrary to 42 U.S.C. § 423(d)(5)(A)." Fair v. Bowen, 885 F.2d 597, 603 11 (9th Cir. 1989). The ALJ reasonably weighed the conflicting opinions in this case. 12 B. The ALJ reasonably weighed Wetzel's subjective allegations. 13 14 The ALJ found Wetzel's allegations about the limiting effects of her symptoms 15 not credible for the reasons discussed in the decision (Tr. 26-30). The ALJ is responsible 16 for determining credibility and resolving ambiguities in the evidence. Edlund, 253 F.3d 17 18 at 1156. When assessing reliability of testimony, the Commissioner will consider all of 19 the available evidence and will apply several factors in determining the extent to which a 20 claimant's alleged limitations can reasonably be accepted as consistent with the medical 21 evidence and other evidence. 20 C.F.R. §§ 404.1529(c), 416.929(c). An ALJ's decision 22 23 "must contain specific reasons for the finding on credibility, supported by the evidence in 24 the case record, and must be sufficiently specific to make clear" the weight the ALJ gave 25 to the testimony and the reasons for that weight. SSR 96-7p, available at 1996 WL 26 27 374186, at *2, *4. "If the ALJ's credibility finding is supported by substantial evidence 28 in the record, we [the reviewing court] may not engage in second-guessing." Thomas v. 10 5 1 Barnhart, 278 F.3d 948, 959 (9th Cir. 2002). The Ninth Circuit has continued to hold 2 that clear and convincing reasons are required to reject a claimant's testimony. Garrison 3 v. Colvin, 759 F.3d 995, 1015 n. 18 (9th Cir. 2014).3 4 5 First, the ALJ examined the medical record and found it inconsistent with a 6 finding of disability (Tr. 26-27). An ALJ may reject a claimant's allegations if her 7 "statements at her hearing do not comport with objective evidence in her medical record." 8 Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). For example, 9 10 regarding Wetzel's non-epileptic seizures, by early 2014, they were down to one per 11 month (Tr. 498). Objective testing was normal, and her reported episodes appeared to be 12 a psychological response to stress (Tr. 433, 465-66), or perhaps due to pharmacological 13 14 treatment or sleep deprivation (Tr. 502). 15 Wetzel argues that her mental health impairments worsened. Pl.'s Br. at 19, 22. 16 However, as late as June 2014, Dr. Hopkins noted that she looked well, was awake and 17 18 alert, and was smiling and "not at all depressed appearing" (Tr. 430). She reported to Dr. 19 Hopkins that she liked Effexor and had no side effects from it, but was still having 20 "seizures" (Tr. 430, Dr. Hopkins's emphasis), suggesting that her mental health 21 impairments were well-controlled, aside from alleged pseudo-seizures. 22 23 In addition, as the ALJ noted, there is no evidence of psychiatric hospitalizations, 24 behavioral problems in the workplace, or counseling, suggesting that her mental 25 26 3 This Commissioner objects to this standard to the extent it is inconsistent with the 27 statute, which requires only that the Commissioner's findings be supported by substantial evidence. In any event, the ALJ satisfied both the statutory standard and the court- 28 imposed standard. 11 5 1 impairments were not disabling (Tr. 27, 419 (did not begin mental health counseling until 2 late 2013)). Not seeking "an aggressive treatment program" permits the inference that 3 symptoms were not "as all-disabling" as the claimant reported). Tommasetti v. Astrue, 4 5 533 F.3d 1035, 1039 (9th Cir. 2008). Moreover, another provider noted that Wetzel had 6 not aggressively followed up with her seizure episodes, despite the fact that such 7 symptoms would be expected to be controlled through medications (Tr. 404). This lack 8 of follow-up undermined the severity of her allegations. 9 10 The ALJ also found that Wetzel made inconsistent statements related to her claim 11 (Tr. 30). "One strong indication of the credibility of an individual's statements is their 12 consistency, both internally and with other information in the case record." SSR 96-7p at 13 14 *5. Even where daily activities suggest some difficulty functioning, "they may be 15 grounds for discrediting the claimant's testimony to the extent that they contradict claims 16 of a totally debilitating impairment." Molina, 674 F.3d at 1113. In contrast with her 17 18 disability allegation, Wetzel engages in a panoply of normal daily activities, including: 19 caring for two minor children; doing laundry, dishes, and sweeping; walking her dog; 20 shopping in stores; attending church; leading narcotics anonymous (NA) meetings; and 21 taking river trips with friends (Tr. 54-56, 61-69, 282-85). In fact, her treating doctor 22 23 encouraged her to continue looking for work (Tr. 357). 24 The record does not support Wetzel's argument that her varying statements about 25 her activities are fully consistent because she can only go places when accompanied by 26 27 people she knows well. Pl.'s Br. at 24. In contrast, she testified that she attends church, 28 she regularly volunteered at a food bank, she volunteered to be an NA sponsor, she eats 12 5 1 in restaurants, she plans to see movies in the theater, and she is a general service 2 representative for NA, which requires her to attend, larger, area group meetings and 3 report back to her smaller group, which she leads (Tr. 61-62, 64-69). She also attended a 4 5 Halloween dance (Tr. 68). These activities suggest that Wetzel regularly had contact 6 with the public or with strangers, and they contradict her allegations of disabling social 7 limitations (Tr. 273-74). 8 The ALJ also noted that Wetzel had a history of low and inconsistent earnings 9 10 prior to the date she alleged she became disabled, suggesting a lack of motivation to work 11 (Tr. 30). A poor work history is a convincing reason to discount credibility. See Thomas, 12 278 F.3d at 959 (relying on the claimant's "extremely poor work history"). In contrast 13 14 with Wetzel's argument that she worked "most of her adult life" until her alleged onset 15 date, Pl.'s Br. at 23, she had very low or non-existent earnings in every year until 2007, 16 when she was 24 (Tr. 236). This was a valid consideration. 17 18 Wetzel asks for a determination of benefits, but she makes no attempt to explain 19 how the elements of the Ninth Circuit's credit-as-true doctrine are met in this case. Pl.'s 20 Br. at 25. A remand for a finding of disability is inappropriate when there are conflicts in 21 the evidence that must be resolved. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 22 23 1090, 1103-04 (9th Cir. 2014). That question must be answered before any evidence is 24 credited as true. Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2015). Here, the State 25 agency medical opinions, the opinion of the physical consultative examiner (Dr. 26 27 McPhee), normal mental status examinations, sparse treatment and inconsistent follow- 28 up, and Wetzel's normal activities all support the ALJ's findings and conflict with Ms. 13 5 1 Albright's and Dr. Joseph's unsupported opinions. Thus, a finding of disability would be 2 inappropriate, even if the ALJ committed harmful error. 3 CONCLUSION 4 5 The ALJ's decision should be affirmed because it is supported by substantial 6 evidence and free of legal error. 7 8 DATED this 18th day of December 2017. 9 10 Respectfully submitted, 11 ELIZABETH A. STRANGE 12 First Assistant United States Attorney District of Arizona 13 14 s/ Sarah L. Martin SARAH L. MARTIN 15 Special Assistant United States Attorney 16 17 Of Counsel for the Defendant: 18 MATHEW W. PILE 19 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 20 701 Fifth Avenue, Suite 2900 M/S 221A 21 Seattle, WA 98104-7075 22 23 24 25 26 27 28 14 5 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant's Brief was filed with the 3 Clerk of the Court on December 18, 2017, using the CM/ECF system, which will 4 5 send notification of such filing to the following: Edward A. Wicklund. 6 7 s/ Sarah L. Martin SARAH L. MARTIN 8 Special Assistant U.S. Attorney 9 Office of the General Counsel 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

REPLY BRIEF by Nicole Wetzel.

Edward A. Wicklund Attorney for Plaintiff Admitted Pro Hac Vice One Park Place 300 South State St., Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Facsimile: (315) 701-5781 Email: twicklund@windisability.com IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Nicole Wetzel No. CV-17-08117 -BSB Plaintiff, REPLY BRIEF OF PLAINTIFF vs. [Dist. Ariz. Local Rule Civil 16.1(a)] Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant Plaintiff reasserts and relies upon the arguments set forth in her Opening Brief (Dkt. No. 18), and replies to the following particular points raised by Defendant in her Brief (Dkt. No. 19). 1. The ALJ's RFC determination is not supported by substantial evidence because failed to properly consider the opinion evidence in accordance with the regulations. Defendant argues that the ALJ properly rejected the opinions of Ms. Albright and Dr. Joseph because neither opinion was consistent with the record. Dkt. No. 1 19 at 4-10. Interestingly, Defendant treats each opinion separately, and fails to acknowledge the findings in Dr. Joseph's examination that support the opinions. Opinion evidence must be assessed by looking at the record as a whole, and the record as a whole supports the opinions of Dr. Joseph and Ms. Albright, as they are consistent with each other. See Dkt. No. 18 at 16-18. As stated in Plaintiff's brief, the only inconsistent evidence in this case was the opinions of the state agency doctors. See Dkt. No. 18 at 17-18. Defendant relies upon the opinions of the state agency doctors to support the ALJ's decision (Dkt. No. 19 at 9), but such reliance is not in accordance with the case law in this Circuit. "[A] nonexamining physician's opinion is, without more, not substantial evidence to reject the opinion of a[n] [examining] physician." Pena v. Astrue, CV 08-615-TUC-RCC, 2010 WL 94104, at *11 (D. Ariz. Jan. 6, 2010) (citing Lester v Chater, 81 F.3d 821, 831 (9th Cir. 1995); Pitzer v. Sullivan, 908 F.2d 502, 506 n. 4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)). Both examining sources in this case presented opinions consistent with each other, with the only contrary evidence being the opinions of the state agency doctors. Reliance on the non-examining physicians' opinions is error, which results in an RFC determination and ultimate finding of non-disability unsupported by substantial evidence. Defendant further argues that Plaintiff failed to explain how the elements of the 2 credit-as-true rule were satisfied in this case to allow the Court to award benefits. Dkt. No. 19 at 13-14. Plaintiff's brief adequately discussed how the factors of the rule were met. See Dkt. No. 18 at 21. The ALJ rejected two examining source opinions, he failed to provide any legally sufficient reason for the rejection, the record is fully developed so no further proceedings are necessary, and if the opinions were accepted as true, the ALJ would have no choice but to find Plaintiff disabled. Defendant relies on alleged conflicts in the evidence, but as fully discussed in Plaintiff's Opening brief, there are no conflicts to be resolved. Defendant relies on Dominguez v. Colvin to support her argument that conflicts must be resolved before evidence can be credited as true. Dkt. No. 19 at 13. However, in that case, the record was not fully developed and there were inconsistencies in her credibility because her own doctor's questioned her limitations. Dominguez v. Colvin, 808 F.3d 403, 409-410 (9th Cir. 2015). That is not the case here. No examining physician claimed Plaintiff was malingering or being untruthful. As explained in the credibility argument, the alleged inconsistencies are not, in fact, inconsistencies. See Dkt. No. 18 at 23-24. Therefore, there are no conflicts to resolve, and the Court can remand the case for an award of benefits under the credit-as-true rule. 3 2. The ALJ's credibility determination is not supported by substantial evidence because the reasons provided are inconsistent with the evidence of record. Defendant's argument concerning Plaintiff's credibility merely parrots the ALJ's decision (Dkt. No. 19 at 11-13), ignoring qualifying statements and failing to consider that Plaintiff could only perform the cited activities with someone she knew present. Obviously, Plaintiff cannot take her mother or her daughters to work with her. Therefore, her ability to perform the activities cited while accompanied by someone does not show that she can work, which the ALJ is required to consider. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). The ALJ's reasons for rejecting Plaintiff's allegations are not supported by the evidence. Therefore, this case should be remanded for a calculation of benefits. Conclusion Based on the foregoing and Plaintiff's Opening Brief, it is respectfully requested this matter be remanded for a calculation of benefits. Alternatively, if the Court determines further proceedings are necessary, it is requested that the case be remanded for a de novo hearing and new decision. Respectfully submitted, /s/ Edward A. Wicklund Edward A. Wicklund, Esq. Attorney for Plaintiff Olinsky Law Group One Park Place 300 South State St., Suite 420 4 Syracuse, New York 13202 Phone: (315) 701-5780 Email: twicklund@windisability.com CERTIFICATE OF SERVICE I hereby certify that on January 2, 2018, I electronically filed Plaintiff's Reply Brief with the Clerk of the District Court using the CM/ECF system, which sent notification of such filing to the following: To: Elizabeth A. Strange Acting United States Attorney District of Arizona Sarah L. Martin Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 State Bar No. WA37068 Fax: (206) 615-2531 sarah.l.martin@ssa.gov Telephone: (206) 615-3705 /s/ Edward A. Wicklund Edward A Wicklund, Esq. Attorney for Plaintiff 5

Order

6 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Nicole Wetzel, No. CV-17-08117-PCT-BSB 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Nicole Wetzel seeks judicial review of the final decision of the 16 Commissioner of Social Security (the "Commissioner") denying her application for 17 benefits under the Social Security Act (the "Act"). The parties have consented to proceed 18 before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b), and have filed 19 briefs in accordance with Rule 16.1 of the Local Rules of Civil Procedure. As discussed 20 below, the Court reverses the Commissioner's decision and remands for a determination 21 of benefits. 22 I. Procedural Background 23 In October 2012, Plaintiff filed applications for disability insurance benefits and 24 supplemental security income based on an amended disability date of June 4, 2012. 25 (Tr. 89, 103, 119, 139.)1 After the Social Security Administration ("SSA") denied 26 Plaintiff's initial application and her request for reconsideration, she requested a hearing 27 before an administrative law judge ("ALJ"). (Tr. 87-88, 117-18.) After conducting a 28 1 Citations to Tr. are to the certified administrative transcript of record. (Doc. 17.) 6 1 hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 20- 2 33.) This decision became the final decision of the Commissioner when the Social 3 Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-6.) 4 See also 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals 5 Council). Plaintiff now seeks judicial review of this decision pursuant to 6 42 U.S.C. § 405(g). 7 II. Administrative Record 8 The administrative record includes medical records and opinions pertaining to the 9 history of diagnoses and treatment related to Plaintiff's alleged impairments including 10 seizure disorder, bipolar disorder, depression disorder, and anxiety disorder.2 (Tr. 22.) 11 A. Medical Treatment Evidence 12 On June 29, 2012, Plaintiff underwent an electroencephalogram ("EEG"). 13 (Tr. 351.) "The record was abnormal because of focal sharp and spike activity" and 14 "polymorphic theta activity" that was "consistent, although not specific, with a seizure 15 disorder." (Id.) On August 7, 2012, neurologist Elwood Hopkins, M.D., examined 16 Plaintiff. (Tr. 359.) Plaintiff reported to Dr. Hopkins that she had a seizure when she 17 was a child, when she delivered her second child, and sometime in 2009 when she was at 18 work. (Id.) Plaintiff also reported that she hit her head in a June 2012 car accident, and 19 since then she had been anxious and worried, and had jaw spasms with speech arrests. 20 (Id.) Dr. Hopkins assessed "[p]robable partial complex seizures with EEG evidence of 21 left temporal focus" and prescribed Lamictal. (Id.) He ordered an MRI of Plaintiff's 22 brain, which was normal. (Tr. 353, 359.) 23 On August 17, 2012, Plaintiff had a seizure and sought treatment at the Verde 24 Valley Medical Center ("VVMC"). (Tr. 395.) The VVMC records describe Plaintiff's 25 seizure symptoms as generalized with loss of consciousness, and her "postictal symptom" 26 was confusion. (Id.) VVMC discharged Plaintiff and advised to follow up with 27 Dr. Hopkins. (Tr. 397.) 28 2 The Court has considered the record and limits its discussion to the medical and opinion evidence that is relevant to Plaintiff's claims. -2- 6 1 Plaintiff saw Dr. Hopkins on September 13, 2012. (Tr. 357.) Plaintiff reported 2 that the night before the appointment she had a seizure that was followed by a second 3 smaller seizure. (Id.) Plaintiff reported that she was tolerating Lamictal at 300 mg, but 4 she was still having "spells." (Id.) Plaintiff reported that flashing lights and loud bass 5 music triggered her "spells." (Id.) Dr. Hopkins noted that Plaintiff was still having 6 muscle spasms and reported consuming a "fair amount of caffeine." (Id.) Plaintiff did 7 not report any other symptoms. (Id.) Dr. Hopkins encouraged Plaintiff to look for work 8 and to try to manage her anxiety and muscle spasms by reducing her caffeine intake and 9 by treating at a "guidance center." (Id.) 10 On October 16, 2012, Plaintiff began treatment with registered nurse practitioner 11 (RNP) Susan Albright for her anxiety and "depression issues." (Tr. 371.) Plaintiff 12 reported that the day before the appointment she had had a seizure that caused muscle 13 pain. (Id.) Plaintiff stated that she had difficulty concentrating and making decisions, 14 she was experiencing sleep disturbances, and had a lack of social interest. (Id.) RNP 15 Albright observed that Plaintiff "appeared well." (Id.) Her musculoskeletal, neurologic, 16 and skin examinations were "unremarkable." (Id.) She appeared alert, had an 17 appropriate affect, was oriented, had logical and relevant thoughts, good insight and 18 judgment, clear and fluent speech, and her recent and remote memory were intact. (Id.) 19 RNP Albright assessed seizure disorder and depression, and prescribed analgesics for 20 muscle soreness and Zoloft for depression. (Tr. 371-72.) During a follow-up 21 appointment on November 27, 2012, Plaintiff reported doing well with Zoloft. (Tr. 370.) 22 RNP Albright observed that Plaintiff was alert and oriented. (Id.) 23 On November 29, 2012, Plaintiff presented to VVMC after having a seizure. 24 (Tr. 384.) Plaintiff complained of a headache, muscle soreness, and weakness on her 25 right side. (Id.) At one point, Plaintiff was noted to be "in some form of generalized 26 body action" and her hands were clenched. (Tr. 386.) Plaintiff was given Ativan and 27 went to sleep. (Id.) Sometime later, after doctors took Plaintiff's medical history and 28 conducted a physical examination, she had another episode that was also treated with -3- 6 1 Ativan. (Id.) Treatment providers at VVMC diagnosed Plaintiff with a seizure disorder 2 and discharged her after her condition improved. (Tr. 388-89.) 3 On March 13, 2013, Plaintiff saw Dr. Hopkins and reported having seizures about 4 twice a week. (Tr. 414.) Dr. Hopkins noted that the seizures were not well controlled, 5 and increased Plaintiff's dose of Lamotrigine to 300 mg at night and 150 mg in the 6 morning. (Id.) During a May 30, 2013 follow-up appointment, Plaintiff's mother 7 reported that Plaintiff continued to have seizures, usually every three to six days. 8 (Tr. 412.) The seizures lasted for up to ten minutes. (Id.) Plaintiff reported that 9 Naproxen was not helping the muscle pains that followed her seizures. (Id.) Dr. Hopkins 10 noted that the seizures were not responsive to Lamotrigine and that he had to consider 11 non-epileptic seizures. (Id.) He prescribed Tegretol, with a taper of Lamotrigine when 12 Plaintiff reached therapeutic levels, and Robaxin for muscle spasms. (Id.) He 13 recommended that Plaintiff undergo a video EEG. (Id.) On November 14, 2013, 14 Plaintiff reported seizures once a week, usually in the late afternoon. (Tr. 437.) Plaintiff 15 stated that she was tolerating Tegretol. (Id.) Dr. Hopkins noted that Plaintiff's seizures 16 were poorly controlled and modified her medications. (Id.) 17 On December 5, 2013, Plaintiffs saw RNP Albright and reported that her last 18 seizure was five days before the appointment. (Tr. 447.) Plaintiff stated that she stayed 19 at home because she was afraid of having seizures in public. (Id.) She reported staying 20 in bed as long as possible in the morning and having no energy. (Id.) RNP Albright 21 discontinued Zoloft due to ineffectiveness and prescribed Wellbutrin. (Id.) 22 On January 23, 2014, Plaintiff saw Dr. Hopkins and reported that she was doing "a 23 bit better." (Tr. 435.) She stated that she had a seizure in November 2013, a partial 24 seizure sometime in December 2013, a seizure during her sleep on December 11, 2013, a 25 seizure on December 26, 2013, and a seizure on January 4, 2014. (Id.) Plaintiff reported 26 taking Wellbutrin 300 mg and stated that she felt off balance and "weird" on the higher 27 dose of Tegretol. (Id.) Dr. Hopkins examined Plaintiff and reported that she had "mild 28 dysmetria and ataxia." (Id.) Dr. Hopkins noted that Welbutrin, at the dosage Plaintiff -4- 6 1 reported taking, could cause seizures. (Id.) He added Topomax to Plaintiff's 2 medications. (Id.) On January 27, 2014, Plaintiff saw RNP Albright to change her 3 medications. (Tr. 446.) RNP Albright discontinued Wellbutrin and prescribed 4 Venlafaxine. (Id.) 5 Between February 19 and 26, 2014, Plaintiff was monitored for epilepsy at Barrow 6 Neurological Institute. (Tr. 498-03.) She did not have any events on days one, three, or 7 five of the monitoring. (Tr. 500-01.) On day two, hyperventilation "produced slowing of 8 the background" and "photic stimulation produced driving at various flash frequencies." 9 (Tr. 500.) On days six and seven, hyperventilation "produced slowing of the 10 background," but "photic stimulation did not produce driving." (Tr. 501.) On day four, a 11 clinical event was documented. (Id.) During the event, Plaintiff was resting in bed and 12 had "irregular twitching movements" and was "poorly responsive." (Tr. 502.) Her eyes 13 were closed, she had "some rigidity with irregular twitching," she had trouble following 14 commands, but she was able to say "I don't know" when asked what was happening. 15 (Id.) The impression was that this was a non-epileptic event. (Id.) Plaintiff's discharge 16 summary stated that the generalized slowing of background suggested a generalized 17 encephalopathic process, "that could be in part due to pharmacological treatment or sleep 18 deprivation." (Tr. 502.) "On intellectual testing [Plaintiff] demonstrated low average 19 verbal comprehension abilities and average perceptual reasoning abilities." (Tr. 502-03.) 20 Plaintiff's memory performance varied from "low average to moderately impaired recall 21 with both verbal and visual information." (Id. at 503.) 22 On February 28, 2014, Plaintiff returned to RNP Albright complaining of feeling 23 tired and sluggish. (Tr. 445.) RNP Albright increased Plaintiff's prescription for 24 Venlafaxine. (Id.) On March 27, 2014, at an appointment with Dr. Hopkins, Plaintiff 25 reported that she was doing much better on her current treatment regimen. (Tr. 433.) 26 Plaintiff reported a few out-of-body experiences, and Dr. Hopkins noted that Plaintiff's 27 seizures were likely non-epileptic. (Id.) He diagnosed dissociative fugue and continued 28 Plaintiff's medications. (Id.) -5- 6 1 Plaintiff had another appointment with RNP Albright on March 28, 2014. 2 (Tr. 444.) Plaintiff reported that her last seizure occurred in mid-February. (Id.). 3 However, she complained of episodes when she would zone out and was forgetful. (Id.) 4 Plaintiff reported frequent frustration with losing things and finding them in places where 5 she did not remember putting them. (Id.) 6 On June 26, 2014, Plaintiff had an appointment with Dr. Hopkins and reported that 7 she was still having seizures. (Tr. 430.) Plaintiff stated that she would feel weird and 8 hear strange sounds in her head. (Id.) Dr. Hopkins noted that Plaintiff looked well, with 9 no sign of depression. (Id.) He began to wean Plaintiff off Tegretol. (Id.) 10 On July 20, 2015, Plaintiff had an appointment with neurologist David Llewellyn, 11 M.D. (Tr. 465.) Plaintiff reported that she would sometimes wake up having seizures. 12 (Id.) Plaintiff's mother reported that she noticed Plaintiff would turn her head and clench 13 her fists for about five minutes, during which time she was unresponsive. (Id.) Plaintiff 14 reported occasional headaches and muscle cramps. (Id.) Dr. Llewellyn reported that, on 15 examination, Plaintiff was awake and alert, had normal attention and concentration, a 16 normal fund of knowledge, was oriented, had intact recent and remote recall, and had 17 "normal language." (Id.) Additionally, he reported that Plaintiff had mildly decreased 18 sensation in the distal lower extremities and a mild reduction in deep tendon reflexes in 19 her feet. (Tr. 466.) Dr. Llewellyn diagnosed "dissociative convulsions" and increased 20 Topiramate to 75 mg pending a review of the last EEG report. (Id.) 21 B. Opinion Evidence 22 1. RNP Albright 23 In 2012 and 2014, RNP Albright completed mental capacity assessments of 24 Plaintiff. (Tr. 374-76, 425-27.) On November 28, 2012, RNP Albright conducted an 25 assessment and opined that Plaintiff had no limitations in her abilities to interact 26 appropriately with the general public, ask simple questions, get along with co-workers, 27 and to maintain socially appropriate behavior. (Tr. 375.) She opined that Plaintiff had 28 moderate limitations in her abilities to carryout short and simple instructions, make -6- 6 1 simple work-related decisions, and respond appropriately to changes in the work setting. 2 (Tr. 375-76.) She found that Plaintiff had marked limitations in her abilities to 3 (1) understand, remember, and carry out simple instructions, (2) carry out detailed 4 instructions, (3) maintain attention and concentration for extended periods, (4) perform 5 activities within a schedule, (5) maintain attendance, (6) sustain a routine without special 6 supervision, (7) work in coordination with others without being distracted by them, 7 (8) perform at a consistent pace, and (9) accept instructions and respond appropriately to 8 criticism from supervisors. (Tr. 374-76.) She also found that Plaintiff had extreme 9 limitations in her abilities to (1) understand and remember detailed instructions, 10 (2) complete a normal workday and workweek without interruptions, (3) travel in 11 unfamiliar places, and (4) set realistic goals. (Tr. 374-76.) RNP Alright also opined that 12 Plaintiff would miss work more than four days per month. (Tr. 375.) 13 On March 28, 2014, RNP Albright completed a second mental capacity 14 assessment. (Tr. 425-27.) She opined that Plaintiff had no limitations in her abilities to 15 ask simple questions. (Tr. 426.) Plaintiff had slight limitations in her abilities to accept 16 instructions and respond appropriately to criticism from others, get along with co-workers 17 or peers, and maintain socially appropriately behavior. (Id.) She found that Plaintiff had 18 moderate limitations in her abilities to perform activities within a schedule and maintain 19 attendance, work in coordination with others without distraction, and interact with the 20 public. (Tr. 425-26.) Plaintiff had marked limitations in her abilities to (1) understand, 21 remember, and carry out simple instructions, (2) sustain a routine without special 22 supervision, (3) perform at a consistent pace, (4) make simple work-related decisions, 23 and (5) interact appropriately with the general public. (Id.) Plaintiff had extreme 24 limitations in her abilities to (1) understand, remember, and carry out detailed 25 instructions, (2) maintain attention and concentration for extended periods, (3) complete a 26 normal workday and workweek, (4) respond to changes in a work setting, (5) travel in 27 unfamiliar places, and (6) set realistic goals. (Tr. 425-27.) RNP Albright opined Plaintiff 28 would miss work more than four times per month. (Tr. 426.) -7- 6 1 2. Colin R. Joseph, Ph.D. 2 In January and November 2013, Dr. Collin Joseph conducted disability 3 evaluations on referral from the Arizona Department of Economic Security, Social 4 Security Disability Determination Office. (Tr. 398-401, 419-22.) Dr. Joseph's January 5 10, 2013 evaluation notes that "there were no medical or mental health records available 6 to review." (Tr. 398.) Dr. Joseph interviewed Plaintiff about her medical history, 7 conducted a mental status examination, and made behavioral observations before stating 8 his "diagnostic impression" and providing a medical source statement. (Tr. 398-401.) 9 Plaintiff reported to Dr. Joseph that she dropped out of school in eleventh grade 10 because she felt uncomfortable in social environments. (Id.) Plaintiff also reported that 11 she was uncomfortable in public places and that she could not go to the grocery store 12 alone due to anxiety about having a seizure. (Id.) Plaintiff described herself as irritable 13 and impatient with people and easily frustrated. (Id.) Plaintiff had ongoing low energy, 14 low motivation, variable appetite, and forgetfulness. (Tr. 399.) Plaintiff stated that her 15 mother kept track of her appointments, reminded her to take her medication, and 16 reminded her to pick up her daughters from the bus stop. (Id.) 17 Plaintiff scored a 30/30 on the mental status examination. (Tr. 400.) Dr. Joseph 18 observed that Plaintiff had a mildly flattened affect and appeared nervous, with a 19 somewhat depressed mood. (Tr. 398, 400.) Dr. Joseph found Plaintiff's depression 20 moderate in severity. (Id.) Dr. Joseph found Plaintiff's description of her symptoms 21 consistent with bipolar disorder. (Id.) He stated that while Plaintiff did not exhibit any 22 impairment in memory function, her mood instability would interfere with her cognitive 23 functioning. (Id.) Dr. Joseph opined Plaintiff would likely need repetition of instructions 24 to learn detailed tasks, her ability to maintain attention and concentration on work-related 25 tasks would be "effortful," and she would likely respond to criticism with anxiety, 26 irritability, or anger. (Id.) He also found that Plaintiff was prone to excessive 27 absenteeism and fleeing the work environment. (Id.) 28 -8- 6 1 Dr. Joseph conducted another disability evaluation on November 5, 2013. 2 (Tr. 418-22.) Unlike the January 2013 evaluation, the November 5, 2013 evaluation does 3 not indicate that there was an absence of medical or mental health records available to 4 review, and instead mentions Plaintiff's medical treatment. (Compare Tr. 398 with 5 Tr. 418-19.) Dr. Joseph interviewed Plaintiff about her medical history, conducted a 6 mental status examination, and made behavioral observations before stating his 7 "diagnostic impression" and providing a medical source statement. (Tr. 418-21.) 8 In the second evaluation, Plaintiff reported to Dr. Joseph that she would not go out 9 in public alone and that she had isolated herself from her friends. (Tr. 419.) Plaintiff 10 stated that she occasionally went to the store with her mother, but she always felt like 11 people were judging her. (Id.) Plaintiff complained of depression with intermittent 12 episodes of increased energy and reduced need for sleep. (Id.) Plaintiff reported that her 13 ability to concentrate was diminishing and that she could not concentrate long enough to 14 help her daughter with math homework. (Id.) Plaintiff reported that mother reminded 15 her to take her medications. (Tr. 419-20.) 16 Dr. Joseph observed that Plaintiff had a moderately flattened affect, appeared 17 worried and lethargic, and became tearful when talking about her future. (Id.) Plaintiff's 18 speech was somewhat slowed and monotone, and she seemed emotionally vulnerable. 19 (Tr. 421.) Plaintiff scored a 28/30 on the mental status exam, which Dr. Joseph found 20 suggestive of difficulty with concentration and attention. (Id.) Dr. Joseph noted that 21 Plaintiff did not identify the correct day of the week, could not perform serial sevens 22 correctly, and spelled world backwards "quite slowly." (Id.) Dr. Joseph diagnosed 23 bipolar disorder. (Id.) Dr. Joseph opined that Plaintiff's cognitive processes would be 24 interrupted in a social or performance setting, she would need repeated instructions to 25 learn detailed tasks, maintaining attention and concentration on work-related tasks would 26 be "effortful," and she would be prone to excessive absenteeism and fleeing work. 27 (Tr. 422.) Dr. Joseph further found that Plaintiff would be prone to panic attacks in a 28 typical work environment. (Id.) -9- 6 1 III. The Administrative Hearing 2 Plaintiff was twenty-eight years old at the disability onset date. (Tr. 31.) She had 3 a high school equivalency education. (Tr. 49.) Plaintiff had past relevant work as a 4 cashier and an assistant manager. (Tr. 51, 80-81.) At the administrative hearing, Plaintiff 5 testified she took care of her daughters by getting them up in the morning, helping them 6 with homework, and doing their laundry. (Tr. 55.) Plaintiff testified that she lived with 7 her parents and that her mom did most of the cooking, but she helped. (Tr. 53, 55.) 8 Plaintiff went shopping at "smaller" stores with her mom. (Id.) Plaintiff's mom 9 accompanied her to her daughters' activities. (Id.) 10 Plaintiff testified that she had previously volunteered at a food bank and that she 11 volunteered for Narcotics Anonymous ("NA") by running two hour-long meetings during 12 the week. (Id. at 61-63.) Plaintiff testified that a friend was trying to help her with her 13 anxiety by taking her to the store and other places to socialize. (Tr. 65.) Plaintiff 14 testified that she went to one NA "dance event" and it was "very nerve-racking." 15 (Tr. 68.) 16 The vocational expert testified that someone of Plaintiff's age, education, and 17 work experience, and with the residual functional capacity ("RFC") the ALJ assessed, 18 could not perform Plaintiff's past relevant work, but could perform the jobs of 19 housekeeper and router. (Tr. 25, 81.) The vocational expert testified that if such an 20 individual needed extra breaks twice per week, there would be no work available for that 21 individual. (Tr. 82.) The vocational expert also testified that missing more than two 22 days of work per month would preclude work. (Tr. 82-83.) The vocational expert 23 testified that there would be no work for an individual with the limitations that Dr. Joseph 24 identified, which were translated into being off task ten percent of the work day. (Tr. 83- 25 84.) 26 IV. The ALJ's Decision 27 A claimant is considered disabled under the Social Security Act if she is unable 28 "to engage in any substantial gainful activity by reason of any medically determinable - 10 - 6 1 physical or mental impairment which can be expected to result in death or which has 2 lasted or can be expected to last for a continuous period of not less than 12 months." 3 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A) (nearly identical standard 4 for supplemental security income disability insurance benefits). To determine whether a 5 claimant is disabled, the ALJ uses a five-step sequential evaluation process. 6 See 20 C.F.R. §§ 404.1520, 416.920. 7 A. The Five-Step Sequential Evaluation Process 8 In the first two steps, a claimant seeking disability benefits must initially 9 demonstrate (1) that she is not presently engaged in a substantial gainful activity, and 10 (2) that her medically determinable impairment or combinations of impairments is severe. 11 20 C.F.R. §§ 404.1520(b) and (c), 416.920(b) and (c). If a claimant meets steps one and 12 two, there are two ways in which she may be found disabled at steps three through five. 13 At step three, she may prove that her impairment or combination of impairments meets or 14 equals an impairment in the Listing of Impairments found in Appendix 1 to Subpart P of 15 20 C.F.R. Part 404. 20 C.F.R. §§ 404.1520(a)(4)(iii) and (d), 416.920(d). If so, the 16 claimant is presumptively disabled. If not, the ALJ determines the claimant's RFC. 17 20 C.F.R. §§ 404.1520(e), 416.920(e). At step four, the ALJ determines whether a 18 claimant's RFC precludes her from performing her past relevant work. 19 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant establishes this prima facie case, 20 the burden shifts to the government at step five to establish that the claimant can perform 21 other jobs that exist in significant number in the national economy, considering the 22 claimant's RFC, age, work experience, and education. 20 C.F.R. §§ 404.1520(g), 23 416.920(g). If the government does not meet this burden, then the claimant is considered 24 disabled within the meaning of the Act. 25 B. The ALJ's Application of the Five-Step Evaluation Process 26 Applying the five-step sequential evaluation process, the ALJ found that Plaintiff 27 had not engaged in substantial gainful activity since the alleged disability onset date. 28 (Tr. 22.) At step two, the ALJ found that Plaintiff had the following severe impairments: - 11 - 6 1 "status post: motor vehicle accident with seizure disorder; bipolar disorder; depression 2 disorder; and anxiety disorder (20 CFR 404.1520(c) and 416.920(c))." (Id.) At step 3 three, the ALJ found that Plaintiff did not have an impairment or combination of 4 impairments that met or equaled the severity of a listed impairment. (Tr. 24.) 5 The ALJ found that Plaintiff had the RFC "to perform a full range of work at all 6 exertional levels." (Tr. 25.) The ALJ clarified that Plaintiff was "limited to occasionally 7 balancing as well as never climbing ladders, ropes, or scaffolds." (Id.) The ALJ further 8 found that Plaintiff "must avoid moderate exposure to hazards, including unprotected 9 heights and moving machinery" and could not "perform primarily driving jobs." (Tr. 26.) 10 Plaintiff could "understand, remember, and carry out simple instructions and perform 11 simple routine repetitive tasks." (Id.) She "could occasionally interact with the public, 12 co-workers, and supervisors with that supervision being occasional, direct and concrete, 13 but no contact with crowds." (Id.) 14 The ALJ concluded that Plaintiff could not perform her past relevant work. 15 (Tr. 31.) The ALJ further concluded that considering Plaintiff's age, education, work 16 experience, and RFC, Plaintiff could perform other work that existed in significant 17 numbers in the national economy. (Id.) Therefore, the ALJ concluded that Plaintiff had 18 not been under a disability as defined in the Act from June 4, 2012 through the date of the 19 ALJ's decision. (Tr. 32.) The ALJ denied Plaintiff's applications for disability and 20 disability insurance benefits and for supplemental security income. (Id.) 21 V. Standard of Review 22 The district court has the "power to enter, upon the pleadings and transcript of 23 record, a judgment affirming, modifying, or reversing the decision of the Commissioner, 24 with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The district 25 court reviews the Commissioner's final decision under the substantial evidence standard 26 and must affirm the Commissioner's decision if it is supported by substantial evidence 27 and it is free from legal error. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); 28 Ryan v. Comm'r of Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008). Even if the - 12 - 6 1 ALJ erred, however, "[a] decision of the ALJ will not be reversed for errors that are 2 harmless." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 3 Substantial evidence means more than a mere scintilla, but less than a 4 preponderance; it is "such relevant evidence as a reasonable mind might accept as 5 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) 6 (citations omitted); see also Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). In 7 determining whether substantial evidence supports a decision, the court considers the 8 record as a whole and "may not affirm simply by isolating a specific quantum of 9 supporting evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (internal 10 quotation and citation omitted). The ALJ is responsible for resolving conflicts in 11 testimony, determining credibility, and resolving ambiguities. See Andrews v. Shalala, 12 53 F.3d 1035, 1039 (9th Cir. 1995). "When the evidence before the ALJ is subject to 13 more than one rational interpretation [the court] must defer to the ALJ's conclusion." 14 Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) (citing 15 Andrews, 53 F.3d at 1041). 16 VI. Plaintiff's Claims 17 Plaintiff raises the following claims: (1) the ALJ erred by assigning little weight to 18 the opinions of examining physician Dr. Joseph and RNP Albright (Doc. 18 at 14-21), 19 and (2) the ALJ erred by failing to provide clear and convincing reasons for rejecting 20 Plaintiff's symptom testimony. (Id. at 22-25.) The Commissioner asserts that the ALJ's 21 decision is free from harmful error and is supported by substantial evidence. (Doc. 19.) 22 As set forth below, the Court concludes that the ALJ erred by rejecting Dr. Joseph's 23 opinions and Plaintiff's subjective complaints. 24 A. Weighing Medical Source Opinions 25 In her first claim, Plaintiff argues that the ALJ erred in assigning little weight to 26 two medical source opinions. In weighing medical source opinion evidence, the Ninth 27 Circuit distinguishes between three types of physicians or treating sources: (1) treating 28 physicians, who treat the claimant; (2) examining physicians, who examine but do not - 13 - 6 1 treat the claimant; and (3) non-examining physicians, who neither treat nor examine the 2 claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, more weight is 3 given to a treating physician's opinion. Id. The ALJ must provide clear and convincing 4 reasons supported by substantial evidence for rejecting a treating or an examining 5 physician's uncontradicted opinion. Id.; see also Reddick v. Chater, 157 F.3d 715, 725 6 (9th Cir. 1998). An ALJ may reject the controverted opinion of a treating or an 7 examining medical source by providing specific and legitimate reasons that are supported 8 by substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 9 2005); Reddick, 157 F.3d at 725. 10 Opinions from non-examining medical sources are entitled to less weight than 11 opinions from treating or examining physicians. Lester, 81 F.3d at 831. Although an 12 ALJ generally gives more weight to an examining physician's opinion than to a non- 13 examining physician's opinion, a non-examining physician's opinion may nonetheless 14 constitute substantial evidence if it is consistent with other independent evidence in the 15 record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). In addition to 16 considering the medical opinions of physicians, an ALJ must consider the opinions of 17 medical providers who are not considered "acceptable medical sources." See 20 C.F.R. 18 § 404.1527(b), (f) (evaluating opinion evidence for claims filed before March 27, 2017). 19 An ALJ may give less deference to "other sources," but must provide reasons germane to 20 each witness for doing so. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 21 When evaluating medical opinion evidence, the ALJ may consider the length and 22 nature of the treating relationship, frequency of examination, "the amount of relevant 23 evidence that supports the opinion and the quality of the explanation provided[,] the 24 consistency of the medical opinion with the record as a whole[, and] the specialty of the 25 physician providing the opinion. . . ." Orn, 495 F.3d at 631; see Revels v. Berryhill, 874 26 F.3d 648, 655 (9th Cir. 2017) (stating that the same factors are used to evaluate the 27 opinions of acceptable medical sources and "the opinions of those who are not."). 28 - 14 - 6 1 B. Weight Assigned Dr. Joseph's Opinions 2 Plaintiff does not dispute that Dr. Joseph's opinions were contradicted by the 3 opinions of the non-examining physicians. (Doc. 18 at 17-18; Tr. 28 (discussing opinions 4 of state agency medical consultants and finding Plaintiff more limited than determined by 5 those consultants) (citing Admin. Hrg. Exs. 3A and 4A)).) Therefore, the ALJ was 6 required to provide "specific and legitimate reasons. . . supported by substantial evidence 7 in the record" for rejecting the opinions of examining physician Dr. Joseph. See Lester v. 8 Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 9 The ALJ assigned "partial weight" to the 2013 opinions of examining physician 10 Dr. Joseph. (Tr. 28.) The ALJ stated that he gave Dr. Joseph's opinions partial weight 11 because they were inconsistent with "the totality of the medical evidence," the results of 12 the mental status examination (MSE), and were based primarily on "the complaints and 13 behavior of [Plaintiff] during the examination."3 (Id.) 14 1. Inconsistent with the Medical Record 15 The ALJ rejected Dr. Joseph's 2013 opinions because he believed that "the 16 limitations imposed on [Plaintiff]" were "inconsistent with the totality of the medical 17 evidence." (Tr. 28.) The ALJ generally referred to the limitations Dr. Joseph assessed, 18 but did not cite to the medical evidence that established a conflict between any particular 19 limitation and the medical record.4 (Id.) The ALJ's conclusory assertion that the 20 3 In his January 2013 disability evaluation, Dr. Joseph noted that "there were no medical or mental health records available to review." (Tr. 398.) The regulations state that when 21 the agency arranges for a consultative examination, it will "give the examiner any necessary background information about your condition." 20 C.F.R. § 416.917. The 22 Commissioner notes that Dr. Joseph did not have medical records to review in January 2013, but does not argue that the opinion should be discounted on that basis (Doc. 19 at 23 8), and the Court would not consider that rationale because the ALJ did not assert it to support his rejection of Dr. Joseph's opinion. (Tr. 28); see Bray v. Comm'r Soc. Sec. 24 Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009) (stating that the court's review is limited to "reasoning and factual findings offered by the ALJ—not post hoc rationalizations that 25 attempt to intuit what the adjudicator may have been thinking."). 26 4 The ALJ noted that Dr. Joseph opined that Plaintiff would have limitations including "additional repetition of instructions to learn new detailed tasks," limitations maintaining 27 attention and concentration on work-related tasks, limitations in responding to feedback from supervisors, excessive absenteeism, and panic attacks in the work setting. (Tr. 28 28 (citing Admin. Hrg. Ex. 11F at 5-6).) The ALJ further noted that Dr. Joseph opined that Plaintiff "would be slow to respond to normal workplace hazards." (Tr. 28.) - 15 - 6 1 limitations Dr. Joseph assessed were inconsistent with the medical evidence does not 2 satisfy the standard required for rejecting an examining physician's opinion. See 20 3 C.F.R. §§ 404.1527, 416.927; Reddick, 157 F.3d at 725 (explaining that an ALJ provides 4 "specific and legitimate reasons for rejecting a contradicted opinion "by setting out a 5 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 6 interpretation thereof, and making findings."); Swanson v. Sec'y of Health and Human 7 Servs, 763 F.2d 1061, 1065 (9th Cir. 1985) (same). The ALJ must do more than offer his 8 conclusions. "He must set forth his own interpretations and explain why they, rather than 9 the doctors', are correct." Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988); see 10 also Widmark v. Barnhart, 454 F.3d 1063, 1069 (9th Cir. 2006). The ALJ did not satisfy 11 this burden in concluding, without explanation, that Dr. Joseph's opinion was 12 "inconsistent with the totality of the medical evidence." (Tr. 28.) 13 2. Based on Subjective Complaints and Behavior 14 The ALJ also rejected Dr. Joseph's opinions because the ALJ concluded that they 15 were primarily based on Plaintiff's subjective complaints and her behavior during the 16 examinations. (Tr. 28.) As Plaintiff argues, this is not a specific and legitimate reason 17 for discounting Dr. Joseph's opinions. 18 Generally, "[a] physician's opinion of disability premised to a large extent upon 19 the claimant's own accounts of his symptoms and limitations may be disregarded where 20 those complaints have been properly discounted." Morgan v. Comm'r of Soc. Sec. 21 Admin., 169 F.3d 595, 602 (9th Cir. 1999) (internal quotation marks and citation 22 omitted). However, the Ninth Circuit has concluded that "the rule allowing an ALJ to 23 reject opinions based on self-reports does not apply in the same manner to opinions 24 regarding mental illness." Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). In 25 Buck, the Ninth Circuit explained that "[p]sychiatric evaluations may appear subjective, 26 especially compared to evaluation in other medical fields. Diagnoses will always depend 27 in part on the patient's self-report, as well as on the clinician's observations of the 28 patient." Id. Therefore, an ALJ does not provide legally sufficient reasons for rejecting - 16 - 6 1 an examining physician's opinion by questioning the credibility of the patient's 2 complaints when "the doctor does not discredit those complaints and supports his 3 ultimate opinion with his own observations." Ryan v Comm'r of Soc. Sec., 528 F.3d 4 1194, 1199-1200 (9th Cir. 2008) (citing Edlund v. Massanari, 253 F.3d 1152, 1159 (9th 5 Cir. 2001)); see Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1300 (9th 6 Cir. 1999) (stating that if the examining psychologist did not find that the claimant was 7 malingering or being deceptive, the ALJ cannot reject the opinion because it is based, in 8 part, on the claimant's complaints). 9 In January and November 2013, Dr. Joseph examined Plaintiff, who was 10 accompanied by her mother at both appointments. (Tr. 398, 418.) During the January 11 2013 examination, Dr. Joseph found that Plaintiff "appeared to give an honest effort to 12 provide relevant information" and that "there was no evidence of malingering or 13 inconsistency." (Tr. 400, 420.) Because Dr. Joseph specifically stated that he found no 14 evidence of malingering or inconsistency, the ALJ erred in rejecting Dr. Joseph's 15 opinions of Plaintiff's mental capacity based on the ALJ's conclusion that those opinions 16 were based on Plaintiff's subjective complaints. (Tr. 400, 420); see Ferrando v. Comm'r 17 of Soc. Sec. Admin., 449 F. App'x. 610, 612 n.2 (9th Cir. 2011) (stating that allowing an 18 "ALJ to discredit a mental health professional's opinion solely because it is based to a 19 significant degree on a patient's 'subjective allegations' is to allow an end-run around our 20 rules for evaluating medical opinions for the entire category of psychological 21 disorders."). Therefore, the ALJ did not provide specific and legitimate reasons for 22 rejecting Dr. Joseph's opinions of Plaintiff's mental capacity.5 23 C. Weight Assigned RNP Albright's Opinions 24 Under the applicable regulations, RNP Albright, a registered nurse practitioner, is 25 considered an "other source," as opposed to an "acceptable medical source." See 20 26 5 Plaintiff does not challenge the ALJ's third reason for rejecting Dr. Joseph's opinion— that it was inconsistent with the results of the MSE. (Doc. 18.) The ALJ noted that 27 Plaintiff scored an average of 29/30 on an MSE. (Tr. 28 (citing Admin. Hrg. Ex. 11F at 4, Ex. 7F at 3).) The Commissioner defends this rationale, but does not explain why the 28 results of the MSE are inconsistent with any particular limitation that Dr. Joseph assessed. - 17 - 6 1 C.F.R. § 416.927(f) (discussing medical opinions from sources who are not acceptable 2 medical sources for claims filed before March 20, 2017). The ALJ may reject the 3 opinions of "other sources" by giving "reasons germane to each witness for doing so." 4 Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); see also Molina v. Astrue, 674 F.3d 5 1104, 1111 (9th Cir. 2012); Turner v. Comm'r of Soc. Sec. Admin., 613 F.3d 1217, 1224 6 (9th Cir. 2010). The ALJ discounted RNP Albrights's opinions because he found them 7 inconsistent with the medical evidence, inconsistent with each other, and because she 8 gave no explanation for the changes between her 2012 and 2014 opinions. (Tr. 29.) The 9 ALJ discounted RNP Albright's opinion that Plaintiff was disabled as an issue reserved 10 to the Commissioner, and Plaintiff does not challenge that aspect of the ALJ's decision. 11 See 20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3) (stating that "[w]e will not give any 12 special significance to the source of an opinion on issues reserved to the 13 Commissioner."). 14 1. Inconsistent with the Medical Record 15 The ALJ rejected RNP Albright's opinions because he believed that they were 16 "inconsistent with the totality of the medical evidence." (Tr. 29.) As previously noted, 17 an ALJ may discount the opinion of an "other source," if he provides a reason "germane 18 to [the] witness for doing so." Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017) 19 (internal quotation marks omitted); see 20 C.F.R. § 416.913 (2013). An inconsistency 20 between the "other source" opinion and other parts of the record may constitute a 21 "germane" reason. However, an ALJ does not provide a "germane" reason for rejecting 22 an "other source" opinion when the ALJ inadequately explains the basis for the 23 inconsistency. See Revels v. Berryhill, 874 F.3d 648, 665-66, 668 (9th Cir. 2017); Popa, 24 872 F.3d at 907 (stating that the ALJ's conclusion that a nurse practitioner's opinion 25 conflicted with other medical evidence was not a germane reasons for discounting her 26 opinion when the ALJ did not sufficiently explain the inconsistency). 27 Here, the ALJ generally referred to RNP Albright's opinions, but did not cite to 28 the medical evidence that established a conflict between any particular limitation - 18 - 6 1 contained in her opinions and the medical record. (Tr. 29.) Thus, the ALJ failed to 2 explain the basis for the alleged inconsistency and therefore did not provide a germane 3 reason for discounting RNP Albright's opinion. See Revels, 874 F.3d at 665-66 4 (concluding that the ALJ failed to demonstrate an inconsistency between a physical 5 therapist's opinion and the record and, therefore, an alleged inconsistency was not a 6 germane for discounting the physical therapist's opinion). 7 2. Inconsistency between Opinions 8 The ALJ also discounted RNP Albright's opinions because they were inconsistent 9 with each other and because she did not explain the differences between her 2012 and 10 2014 opinions. (Tr. 29.) For example, the ALJ noted that in 2012 RNP Albright opined 11 that Plaintiff had "almost no limitation in social interaction," and in 2014 she opined that 12 Plaintiff would have "slight limitations in this area." (Id.) 13 The Commissioner further explains that in 2012, RNP Albright found that Plaintiff 14 had no limitations in four areas of social interaction (the ability to interact appropriate 15 with the general public, to ask simple questions or request assistance, to get along with 16 peers and co-workers without distraction, and to maintain socially appropriate behavior) 17 and a marked limitations in accepting instructions and responding appropriate to criticism 18 from supervisors. (Doc. 19 at 6, Tr. 375.) Then, in March 2014, RNP Albright found 19 slight limitations in three areas of social functioning (the ability to accept instructions or 20 respond appropriately to criticism from supervisors, the ability to get along with peers 21 and co-workers without distraction, and the ability to maintain socially appropriately 22 behavior) and a moderate limitation in her ability to interact with the general public. 23 (Doc. 19 at 6; Tr. 426.) 24 Upon review of the 2012 and 2014 opinions, the Court has found other differences 25 between the opinions that are unexplained. (Compare Tr. 375-76 with Tr. 425-26.) The 26 2014 opinion generally reflects that Plaintiff's mental abilities were more limited, but 27 sometimes indicates that Plaintiff's mental limitations were less limited than in 2012 28 (Id.) - 19 - 6 1 Plaintiff states that medical evidence in the record, including Dr. Joseph's 2 evaluation and Dr. Hopkins' March 2014 diagnosis of a "dissociative fugue", supports 3 the changes in RNP Albright's 2014 opinion. (Doc. 18 at 18-19.) She asserts that the 4 record indicates that Plaintiff's condition declined and, thus, explains the changes in RNP 5 Albright's opinions. (Id.) However, there is no indication that RNP Albright considered 6 this evidence in reaching her opinions. (Tr. 375-76, 425-26.) Additionally, an alleged 7 decline in Plaintiff's condition does not explain findings in the 2014 mental capacity 8 assessment that indicate that Plaintiff's mental abilities were less limited than noted in the 9 2012 mental capacity assessment. 10 The Court concludes that RNP Albright's unexplained changes between her 2012 11 and 2014 opinions, which resulted in inconsistencies between those opinions, was a 12 germane reason for the ALJ to discount her opinions. See Matney ex rel. Matney v. 13 Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992) (concluding that inconsistency in a 14 doctor's own opinions was a specific and legitimate reason for discounting the opinions). 15 Because the Court concludes that the ALJ provided one germane reason for discounting 16 RNP Albright's opinions of Plaintiff's functional mental abilities, the ALJ properly 17 discounted RNP Albright's opinions. See Lewis, 236 F.3d at 511. 18 D. Plaintiff's Subjective Complaints 19 Plaintiff asserts that the ALJ erred by failing to provide clear and convincing 20 reasons for discounting her subjective complaints. (Doc. 18 at 22-25.) The 21 Commissioner defends the ALJ's assessment of Plaintiff's symptom testimony. (Doc. 19 22 at 10-14.) As discussed below, the Court finds that the ALJ erred by rejecting Plaintiff's 23 symptom testimony without providing clear and convincing reasons for doing so. 24 An ALJ uses a two-step analysis to evaluate a claimant's subjective symptom 25 testimony. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (citing Lingenfelter v. 26 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). "First, the ALJ must determine whether 27 the claimant has presented objective medical evidence of an underlying impairment 28 'which could reasonably be expected to produce the pain or other symptoms alleged.'" - 20 - 6 1 Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 2 1991) (en banc)). The claimant is not required to show objective medical evidence of the 3 pain itself or of a causal relationship between the impairment and the symptom. Smolen, 4 80 F.3d at 1282. Instead, the claimant must only show that an objectively verifiable 5 impairment "can reasonably produce the degree of symptom alleged." Lingenfelter, 504 6 F.3d at 1036 (quoting Smolen, 80 F.3d at 1282); see also Carmickle v. Comm'r of Soc. 7 Sec., 533 F.3d at 1160B61 (9th Cir. 2008) ("requiring that the medical impairment 'could 8 reasonably be expected to produce' pain or another symptom. . . requires only that the 9 causal relationship be a reasonable inference, not a medically proven phenomenon"). 10 Second, if a claimant shows that she suffers from an underlying medical 11 impairment that could reasonably be expected to produce her other symptoms, the ALJ 12 must "evaluate the intensity and persistence of [the] symptoms" to determine how the 13 symptoms limit the claimant's ability to work.6 See 20 C.F.R. § 404.1529(c)(1). At this 14 second evaluative step, the ALJ may reject a claimant's testimony regarding the severity 15 of her symptoms only if the ALJ "makes a finding of malingering based on affirmative 16 evidence," Lingenfelter, 504 F.3d at 1036 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 17 880, 883 (9th Cir. 2006)), or if the ALJ offers "clear and convincing reasons" for 18 discounting the symptom testimony. Carmickle, 533 F.3d at 1160 (quoting Lingenfelter, 19 6 In 2016, after the ALJ issued his 2015 decision in this case, the Social Security 20 Administration issued Social Security Ruling 16-3p, 2016 WL 1119029 (March 16, 2016) (SSR 16-3p) (effective March 16, 2016), which provides new guidance for ALJs 21 when evaluating a disability claimant's statements regarding the intensity, persistence, and limiting effects of symptoms. SSR 16-3p replaces Social Security Ruling 96-7p, 22 1996 WL 374186 (July 2, 1996) (SSR 96-7p). SSR 16-3p eliminates the term "credibility" used in SSR 96-7p to "clarify that subjective symptom evaluation is not an 23 examination of the individual's character." SSR 16-3p, 2016 WL 1119029, at *1. "The change in wording is meant to clarify that administrative law judges aren't in the business 24 of impeaching claimants' character," but "obviously administrative law judges will continue to assess the credibility of pain assertions by applicants, especially as such 25 assertions often cannot be either credited or rejected on the basis of medical evidence." Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016) 26 The methodology required by SSR 16-3P and SSR 96-7p are similar. Under either 27 ruling, the ALJ is required to consider the claimant's report of her symptoms against the record; in SSR 96-7p, this resulted in a "credibility" analysis, in SSR 16-3, this allows the 28 adjudicator to evaluate "consistency." - 21 - 6 1 504 F.3d at 1036). "This is not an easy requirement to meet: 'The clear and convincing 2 standard is the most demanding required in Social Security cases.'" Garrison v. Colvin, 3 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm'r of Soc. Sec. Admin., 278 4 F.3d 920, 924 (9th Cir. 2002)). Plaintiff argues that the ALJ did not provide clear and 5 convincing reasons for rejecting her symptom testimony. (Doc. 16 at 24.) As set forth 6 below, the Court concludes that the ALJ erred by discounting this testimony.7 7 As noted in the ALJ's decision, when she applied for disability, Plaintiff reported 8 that she was unable to work due to epilepsy, recurring seizures, anxiety, and depression. 9 (Tr. 26 (citing Admin. Hrg. Ex.2E at 2).) Plaintiff later reported that her social anxiety 10 had worsened and that her epilepsy had not improved. (Tr. 26 (citing Admin. Hrg. 11 Ex. 4E at 2).) Plaintiff stated that she had limitations in walking, sitting, kneeling, stair 12 climbing, memory, concentration, following instructions, and using her hands. (Tr. 26 13 (citing Admin. Hrg. Ex. 6E at 6).) Plaintiff explained that she could follow written 14 instructions, but could not follow spoken instructions. (Tr. 26.) The ALJ concluded that 15 Plaintiff's "medically determinable impairments could reasonably be expected to cause 16 the alleged symptoms" but found that her "statements concerning the intensity, 17 persistence, and limiting effects of these symptoms were not entirely credible. . . ." (Id.) 18 As discussed below, the ALJ gave several reasons for rejecting Plaintiff's symptom 19 testimony. (Tr. 26-27.) 20 1. Plaintiff's Work History 21 The ALJ stated that he considered Plaintiff's work history in assessing the 22 credibility of her symptoms. (Tr. 30.) The ALJ concluded that Plaintiff's "relatively low 23 and inconsistent earnings prior to the alleged onset date" indicated a "lack of motivation," 24 which undermined Plaintiff's credibility. (Id.) Plaintiff disputes the ALJ's conclusion 25 and asserts that she worked for most of her adult life before she applied for disability 26 benefits. (Doc. 18 at 23.) 27 28 7 The Commissioner objects to the clear and convincing standard, but recognizes that the Ninth Circuit continues to apply this standard. (Doc. 19 at 11 n.3.) - 22 - 6 1 Plaintiff states that she first worked in 1999-2000, when she was sixteen or 2 seventeen years old. (Id.) She started working again in 2004, when she was twenty-one 3 years old. (Id.) Plaintiff agrees that her earnings records do not show any earnings for 4 2006, but states that during that year she moved back to Arizona from Pennsylvania 5 where she had previously worked at a Giant Food Store. (Doc. 18 at 23; Tr. 52, 236-37.) 6 Starting in 2007, Plaintiff worked at Family Dollar "until she became disabled." 7 (Doc. 18 at 23.) The record reflects that, with the exception of 2006, Plaintiff worked 8 regularly once she started working at the age of twenty-one in 2004. (Tr. 236-37.) The 9 lack of record earnings during one year does not support the conclusion that Plaintiff had 10 a poor work history that indicated a lack of motivation to work. But see Thomas v. 11 Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (poor work history, including gaps of several 12 years between jobs, showed little propensity to work); Brown v. Comm'r of Soc. Sec., 13 2011WL 5117911, at *6 (D. Or. Oct. 26, 2011) (work history that included several years 14 during which claimant had no earnings was inconsistent with allegation that claimant was 15 unable to work due to alleged impairments). 16 2. Activities of Daily Living 17 An ALJ may reject a claimant's symptom testimony if the severity of the alleged 18 symptoms is incompatible with the claimant's daily activities. See Burch v. Barnhart, 19 400 F.3d 676, 681 (9th Cir. 2005). Daily activities may also be "grounds for an adverse 20 credibility finding 'if a claimant is able to spend a substantial part of his day engaged in 21 pursuits involving the performance of physical functions that are transferable to a work 22 setting.'" Orn, 495 F.3d at 639 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 23 1989)). 24 The ALJ found that Plaintiff's reported limitations in walking, memory, 25 concentration, following instructions, and using her hands were inconsistent with her 26 abilities to get her two minor children up in the mornings, help her children with 27 homework, do laundry, help with chores (doing dishes and sweeping), and walk her dog. 28 (Tr. 30.) As Plaintiff argues, the ALJ did not properly rely on these daily activities to - 23 - 6 1 support his credibility determination. (Doc. 18 at 23-24.) Plaintiff's daily activities are 2 not a clear and convincing reason supported by substantial evidence for discrediting 3 Plaintiff's symptom testimony. 4 The ALJ did not make any finding addressing how often Plaintiff engaged in these 5 activities or whether these activities were transferrable to a work setting. (Id.) 6 Additionally, the ALJ did not explain why the cited daily activities were inconsistent with 7 the severity of Plaintiff's reported symptoms. Accordingly, Plaintiff's daily activities 8 were not a legally insufficient reason for discounting her symptom testimony, and the 9 ALJ erred by discounting Plaintiff's symptom testimony on the basis of her daily 10 activities. See Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (finding that ALJ 11 erred by relying on claimant's childcare activities to discount the severity of claimant's 12 symptoms when there were no details regarding those activities). 13 3. Inconsistent Statements related to Social Phobia and Drug Use 14 The ALJ also noted that Plaintiff had reported that she had a social phobia and 15 could not go places alone. (Tr. 30; Tr. 281 (reporting social anxiety), Tr 284 (reporting 16 that she could not go out in public alone).) The ALJ discounted this symptom testimony 17 because he found it inconsistent with Plaintiff's testimony that she attended school and 18 registration meetings for her children, occasionally shopped with her family, used a cell 19 phone, went for walks, attended church three times a month, had a significant other she 20 met in a social setting, volunteered with NA, and ran NA meetings three times a month. 21 (Tr. 30.) The ALJ also noted that Plaintiff had an NA sponsor, was a NA sponsor, 22 attended a NA party in 2014, and went on river trips with friends. (Tr. 30.) 23 Plaintiff does not dispute that she engaged in these activities. (Doc. 18 at 24.) 24 However, she correctly notes that her use of a cell phone is not inconsistent with her 25 report that she cannot go out alone. Additionally, she did not participate in the listed 26 activities alone. Rather, Plaintiff's mother went with her to school meetings and the 27 store. (Tr. 54-55.) Plaintiff testified that she went on walks with her daughters, including 28 dog walks. (Tr. 56, 61.) Plaintiff also testified that she went to church with her family. - 24 - 6 1 (Tr. 61 (testifying that "we go [to church] like three times a month.").) Plaintiff also 2 explained that she had been involved in NA for two years, and that "[f]our or five 3 people" attended the NA meetings, that she was "comfortable around" the people in her 4 group, and that her NA sponsor (who she has known since she was "a little girl") 5 attended meetings with her. (Tr. 64, 76-78.) Plaintiff also had a significant other with 6 whom she attended NA meetings. (Tr. 66, 69.) Plaintiff testified that she had three 7 friends who helped her with transportation. (Tr. 56, 65.) Plaintiff stated that she 8 socialized with those friends by going to the river, or hiking in the summer, or going out 9 to eat. (Tr. 65.) 10 Plaintiff's ability to go out to dinner or participate in other activities with friends 11 or family is not inconsistent with her reported social phobia. Thus, the ALJ's conclusion 12 that Plaintiff made inconsistent statements regarding her social phobia is not supported by 13 substantial evidence in the record and, thus, is not a sufficient reason for discounting her 14 testimony about her social phobia. 15 The ALJ also discounted Plaintiff's credibility because he found that she was not 16 truthful about her drug use. (Tr. 30.) The ALJ noted that Plaintiff testified at the 2015 17 administrative hearing that she had been clean for over three years, but she had a 2013 18 drug conviction. (Tr. 30, 59 (Plaintiff's testifying that she had not "had drugs in her 19 system for probably four years.").) As Plaintiff notes (Doc. 18 at 24), the record reflects 20 that the charges against Petitioner were based on activity in 2012, three years before the 21 hearing. (Tr. 242.) Thus, Plaintiff's statement about her drug use was not inconsistent 22 with the record. 23 VII. Conclusion and Remedy 24 As set forth above, the Court concludes that the ALJ erred by rejecting the opinion 25 of Dr. Joseph and by rejecting Plaintiff's symptom testimony. Thus, the Court reverses 26 the Commissioner's decision and has the discretion to remand the case for further 27 development of the record or for an award benefits. See Reddick, 157 F.3d at 728. Under 28 the Ninth Circuit's credit-as-true standard, courts may credit as true improperly rejected - 25 - 6 1 medical opinions or claimant testimony and remand for an award of benefits if each of 2 the following are satisfied: "(1) the record has been fully developed and further 3 administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 4 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or 5 medical opinion; and (3) if the improperly discredited evidence were credited as true, the 6 ALJ would be required to find the claimant disabled on remand." Garrison, 759 F.3d at 7 1020 (citing Ryan, 528 F.3d at 1202). If the "credit-as-true rule" is satisfied, the court 8 may remand for further proceedings, instead of for an award of benefits, "when the 9 record as a whole creates serious doubt as to whether the claimant is, in fact, disabled 10 within the meaning of the Social Security Act." Garrison, 759 F.3d at 1021. 11 Here, the Court finds that the record has been fully developed and further 12 administrative proceedings would serve no useful purpose. Further, as detailed above, 13 the Court finds that the ALJ has failed to provide legally sufficient reasons for rejecting 14 Dr. Joseph's opinions and Plaintiff's symptom testimony. Finally, according to the 15 vocational expert's testimony, if Dr. Joseph's opinions were credited as true, Plaintiff 16 would be disabled under the Act. (Tr. 83 (citing Admin. Hrg. Exs. 7F and 11F).) Review 17 of the record does not create serious doubt as to whether Plaintiff is disabled under the 18 Act. See Garrison, 759 F.3d at 1021. 19 Accordingly, 20 IT IS ORDERED that the Commissioner's decision denying benefits is 21 REVERSED and this matter is remanded for a determination of benefits. 22 Dated this 8th day of June, 2018. 23 24 25 26 27 28 - 26 -

Clerks Judgment

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Nicole Wetzel, NO. CV-17-08117-PCT-BSB 10 Plaintiff, JUDGMENT IN A CIVIL CASE 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Decision by Court. This action came for consideration before the Court. The 16 issues have been considered and a decision has been rendered. 17 IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed June 18 8, 2018, the decision of the Commissioner of Social Security is reversed, and this case is 19 remanded to the Social Security Administration for further proceedings consistent with 20 the Order. 21 Brian D. Karth District Court Executive/Clerk of Court 22 23 June 8, 2018 s/ Rebecca Kobza 24 By Deputy Clerk 25 26 27 28

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

1 Edward A. Wicklund 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 7 Email: fedct@windisability.com 8 Attorney for Plaintiff Nicole Wetzel 9 10 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 11 12 Nicole Wetzel, 13 Plaintiff, Civil No. 3:17-cv-08117-BSB 14 15 vs. 16 MOTION FOR ATTORNEY'S FEES PURSUANT TO THE 17 Nancy A. Berryhill, Acting EQUAL ACCESS TO JUSTICE 18 Commissioner of Social Security, ACT, 28 U.S.C.A. § 2412 (WEST) 19 Defendant 20 21 PLAINTIFF'S MOTION FOR ATTORNEY'S FEES PURSUANT TO THE 22 EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C.A. § 2412 (WEST) 23 24 COUNSEL: 25 PLEASE TAKE NOTICE that upon the annexed affirmation of Edward 26 27 A. Wicklund, attorney for the plaintiff, and other papers, the plaintiff will make a 28 motion before Hon. Bridget S. Bade, at Sandra Day O'Connor U.S. Courthouse, Page 1 1 Suite 522, 401 West Washington Street, SPC 50, Phoenix, AZ 85003 on a date to 2 be set by the court, for an order: 3 4 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,418.76 and 5 2. Awarding Expenses in the amount of $17.67; and 6 7 3. If the Plaintiff has no debt registered with the Department of Treasury 8 subject to offset that the fees be made payable to the attorney. 9 10 Plaintiff, by her attorney, Edward A. Wicklund moves the court for an award to be 11 paid by the Defendant under the Equal Access to Justice Act, 28 U.S.C.A. § 2412. 12 13 14 Plaintiff may receive an award under the Equal Access to Justice Act because she 15 is the prevailing party, is an individual whose net worth did not exceed two 16 17 million dollars when the action was filed, and the position of the United States in 18 this litigation and/or at the agency was not substantially justified. Although the 19 burden of proof on substantial justification is on the government, Plaintiff's 20 21 supporting memorandum briefly addresses this issue. 22 23 There are no special circumstances in this case which make an award under the 24 25 EAJA unjust. 26 This motion is supported by an affirmation of Plaintiff's attorney, attached time 27 and cost records and an Affidavit and Waiver of Direct Payment by the plaintiff. 28 Page 2 1 2 Executed this September 6, 2018 3 4 Respectfully submitted, 5 /s/ Edward A. Wicklund 6 Edward A. Wicklund, Esq. Admitted Pro Hac Vice 7 Attorney for Plaintiff 8 Email: fedct@windisability.com 9 10 To: Elizabeth Strange, Esq. Acting United States Attorney 11 District of Arizona 12 Sarah L. Martin, Esq. 13 Special Assistant United States Attorney Office of the General Counsel 14 Social Security Administration 15 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 16 Fax: (206) 615-2531 17 Email: sarah.l.martin@ssa.gov Telephone: (206) 615-2936 18 19 Attorneys for Defendant 20 21 22 23 24 25 26 27 28 Page 3

Text of Proposed Order

1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 10 11 12 Nicole Wetzel, Civil No. 3:17-cv-08117-BSB 13 Plaintiff, 14 15 vs. (PROPOSED) ORDER AWARDING ATTORNEY'S FEES 16 PURSUANT TO THE EQUAL 17 Nancy A. Berryhill, Acting ACCESS TO JUSTICE ACT, 18 Commissioner of Social Security, 28 U.S.C. § 2412(D) 19 Defendant 20 21 (Proposed) Order Awarding Attorney's Fees 22 pursuant to the Equal Access to Justice Act, 23 28 U.S.C. § 2412(d) 24 25 Before the Court is the Motion of Plaintiff Tami Lee Cheatham, for award 26 of attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 27 2412(d). Based on the pleadings as well as the position of the defendant 28 Page 1 1 commissioner, if any, and recognizing the Plaintiff's waiver of direct payment and 2 assignment of EAJA to her counsel, 3 4 5 IT IS HEREBY ORDERED that attorney fees, costs, and expenses in the 6 total amount of Six Thousand Four Hundred Thiry-Six Dollars and Forty-Three 7 8 Cents ($6,436.43) pursuant to the Equal Access to Justice Act, 28 U.S.C. § 9 2412(d) are awarded to Plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010). 10 11 If the U.S. Department of the Treasury determines that Plaintiff's EAJA 12 13 fees are not subject to offset allowed under the Department of the Treasury's 14 Offset Program (TOPS), then the check for EAJA fees shall be made payable to 15 Plaintiff's attorney, Edward A. Wicklund. 16 17 18 Whether the check is made payable to Plaintiff or to Edward A. Wicklund, 19 20 21 the check shall be mailed to Edward A. Wicklund at the following address: 22 300 South State Street 23 Suite 420 Syracuse, NY 13202 24 25 DATED: 26 27 __________________________ 28 Page 2

DECLARATION of Edward A. Wicklund., AFFIDAVIT in Support re: [23] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, filed by Nicole Wetzel.

1 2 Edward A. Wicklund Admitted Pro Hac Vice 3 Olinsky Law Group 4 One Park Place 300 South State Street 5 Suite 420 6 Syracuse, NY 13202 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Nicole Wetzel 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Nicole Wetzel, 13 14 Plaintiff, Civil No. 3:17-cv-08117-BSB 15 16 vs. Attorney's affirmation in support of 17 Fees Pursuant to the Equal Access to 18 Nancy A. Berryhill, Acting Justice Act, 28 U.S.C. § 2412 19 Commissioner of Social Security, 20 Defendant 21 22 Attorney's Affirmation in Support of Fees Pursuant to the Equal Access to 23 Justice Act, 28 U.S.C. § 2412 ________________________________________ 24 25 Edward A. Wicklund, being duly sworn deposes and states: 26 27 1. I am an attorney licensed to practice law in the State of New York, 28 admitted to practice pro hac vice before this Court. Page 4 1 2. I make this affirmation knowing that the Court will rely upon it in 2 assessing any awards under the Equal Access to Justice Act. 28 U.S.C.A. § 2412. 3 4 3. There are no special circumstances in this case which make an award 5 under the EAJA unjust. 6 4. The Court ordered on June 8, 2018 that the above-entitled case be 7 8 remanded for further administrative proceedings, under the fourth sentence of 42 9 U.S.C.A. § 405(g) (West). 10 5. For the Equal Access to Justice Act, I am requesting an hourly rate 11 of $196.79 for attorney time through 2017 and an hourly rate of $200.78 for 12 13 attorney time through the first half of 2018. See generally, 14 http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 U.S.C.A 9th 15 Circuit EAJA Table. If attorney fees are calculated at this rate for 23.6 hours of 16 17 work performed in 2017 and 5.8 hours for worked performed in the first half of 18 2018 they total $5,808.76. 19 6. I am also requesting $100.00 per hour for 6.1 hours of paralegal time 20 21 equaling $610.00. I am requesting $6,418.76 for Counsel Fees which include 22 attorney and paralegal time. 23 7. The time accounting is presented to the court in two fashions. 24 25 Exhibit A is the time spent by all who worked on this case in chronological 26 sequence. Exhibit B is broken down by attorneys and their work performed in 27 2017. Exhibit C is broken down by attorneys and their work performed in 2018. 28 Page 5 1 The attorneys involved in this case are Howard D. Olinsky, Esq., and Edward A. 2 Wicklund, Esq, Melissa Palmer, Esq., and Marissa Burkett, Esq. Exhibit D is 3 4 broken down by paralegals. The paralegals involved in this case are Tamica 5 Lockwood, Michelle Callahan, Michael Smith, and Jonnah Graser. 6 8. I am requesting reimbursement of expenses of $17.67 for Certified 7 8 Mail for the summons and complaint to the defendant's office's as shown on 9 Exhibit E. The Supreme Court has clarified that only the items specifically listed 10 in 28 U.S.C. §1920 are compensable as costs. See Crawford Fitting Co. v. J. T. 11 Gibbons, Inc., 482 U.S. 437, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987). 28 12 13 U.S.C.A. § 1920 (West) provides: 14 A judge or clerk of any court of the United States may tax as costs the 15 following: a.) fees of the clerk and marshal; 16 b.) fees of the court reporter for all or any part of the stenographic transcript 17 necessarily obtained for use in the case; c.) fees and disbursements for printing and witnesses; 18 d.) fees for exemplification and copies of papers necessarily obtained for 19 use in the case; e.) docket fees under section 1923 of this title; 20 f.) compensation of court appointed experts, compensation of interpreters, 21 and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. 22 23 The postage fee to serve process by certified mail is reimbursable as an 24 25 expense. 26 9. The attached records were contemporaneously created and stored in 27 the firm's Prevail Database, and are printed out and attached. The itemized time 28 Page 6 1 represents hours spent preparing and handling this case for U.S. District Court. 2 Clerical time is not included in this petition or has been zeroed out. 3 4 Waiver of Direct Payment of EAJA Fees 5 10. Attached is an Affidavit and Waiver of Direct Payment duly 6 executed by the plaintiff (Exhibit F). With this Waiver, if Plaintiff owes a debt 7 8 that qualifies under the Treasury Offset Program (31 U.S.C.A. § 3716 (West)), any 9 payment shall be made payable to the Plaintiff and delivered to the Plaintiff's 10 attorney. If the United States Department of Treasury determines that Plaintiff 11 owes no debt subject to offset, the government may accept the assignment of 12 13 EAJA fees and pay such fees directly to the Plaintiff's attorney. Astrue v. Ratliff, 14 560 U.S. 586, 130 S. Ct. 2521, 177 L. Ed. 2d 91 (2010). 15 16 17 WHEREFORE, because all four elements of an allowable application for 18 EAJA fees have been proven, petitioner requests that the Court issue an order: 19 20 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,418.76; 21 and 22 2. Awarding Expenses in the amount of $17.67; and 23 3. If the Plaintiff has no debt registered with the Department of Treasury 24 25 subject to offset that the fees be made payable to the attorney. 26 27 Executed this September 6, 2018 28 Page 7 1 Respectfully submitted, 2 /s/ Edward A. Wicklund 3 Edward A. Wicklund, Esq. 4 Admitted Pro Hac Vice Attorney for Plaintiff 5 Email: fedct@windisability.com 6 7 8 To: Sarah L. Martin, Esq. Special Assistant United States Attorney 9 Office of the General Counsel 10 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 11 Seattle, WA 98104-7075 12 Fax: (206) 615-2531 Email: sarah.l.martin@ssa.gov 13 Telephone: (206) 615-2936 14 Attorneys for Defendant 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 8

Exhibit A-CPI Table

Exhibit A Ledger Wetzel, Nicole Date t Subject Hours Timekeeper 5/2/2017 Files received, reviewed and processed from referral source for attorney review 0.6 Lockwood, Tamica 5/2/2017 Correspondence to client re: Prospect Acknowledgement Letter 0.2 Lockwood, Tamica 5/5/2017 Telephone call to Client re: Debt conference call attempt, left vm 0 Lockwood, Tamica 5/22/2017 Review decisions and evidence to determine whether to appeal case 1 Olinsky, Howard D. 5/22/2017 Telephone call with Client re: Assistance with ifp, left vm 0 Lockwood, Tamica 5/22/2017 Email: Immediate Contact – Regarding your Federal Social Security Case 0.1 Lockwood, Tamica 5/23/2017 Telephone call with Client re: Assistance with in forma pauperis application 0.4 Lockwood, Tamica 5/23/2017 Federal court prospect packet prepared for Client completion 0.6 Lockwood, Tamica 5/23/2017 FDC Prospect Packet Sent via Right Signature 0.2 Lockwood, Tamica 5/23/2017 FDC prospect packet returned via Right Signature, reviewed for completion 0.3 Lockwood, Tamica 6/21/2017 Draft application for Pro Hac Vice admission 0 Wicklund, Edward A. 6/22/2017 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.6 Wicklund, Edward A. 6/22/2017 Review motion to proceed in forma pauperis, approve for filing 0.2 Wicklund, Edward A. 6/22/2017 Federal Court -Accept Letter - New FDC Filing 0.3 Smith, Michael P. 6/23/2017 Review case assigned Hon. Bridget S. Bade, research ind. rules & practices 0.2 Wicklund, Edward A. 6/23/2017 Note remark granting pro hac vice admission 0 Wicklund, Edward A. 6/27/2017 Review order granting In Forma Pauperis application, directing service 0.1 Wicklund, Edward A. 6/27/2017 Review issued summons 0.1 Wicklund, Edward A. 7/11/2017 Review order re: Failure to comply to LR- Magistrate Consent 0 Wicklund, Edward A. 7/11/2017 Confer w/ EAW re: Magistrate consent 0.1 Lockwood, Tamica 7/11/2017 Review and execute Magistrate Consent 0.1 Wicklund, Edward A. 7/11/2017 Correspondence to clerk re: Magistrate Consent via USPS 0.1 Lockwood, Tamica 7/12/2017 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0.6 Callahan, Michelle 7/17/2017 Review minute order re: Show cause hearing vacated 0.1 Wicklund, Edward A. 7/17/2017 Review text entry re: Magistrate Judge 0 Wicklund, Edward A. 7/27/2017 Compile and file proof of service via CM / ECF 0.3 Callahan, Michelle 7/28/2017 Review service executed 0.1 Wicklund, Edward A. 8/18/2017 Review notice of attorney Sarah Martin o/b/o Commissioner of SSA 0.1 Wicklund, Edward A. 8/23/2017 Review scheduling order, calendar dates on task pad 0.3 Wicklund, Edward A. 9/7/2017 Review text order re: Magistrate Judge 0.1 Wicklund, Edward A. 9/7/2017 Review minute order re: reassignment of case to MJ Bridget S. Bade 0.1 Wicklund, Edward A. 9/19/2017 Review answer to complaint 0.1 Wicklund, Edward A. 9/19/2017 Review notice of filing Certfied Copy of Administrative Transcript 0.1 Wicklund, Edward A. 9/25/2017 Combine, strip PDF/A, OCR and live bookmark federal court transcript (516 pgs) 0.6 Graser, Jonnah 9/25/2017 Preliminary review of transcript - assign Attorney writer 0.3 Wicklund, Edward A. 11/15/2017 Review certified administrative record and take notes 4.3 Palmer, Melissa 11/16/2017 Drafting procedural section, drafting facts 6.8 Palmer, Melissa 11/17/2017 Research issues and drafting argument 7.5 Palmer, Melissa 11/17/2017 Attorney review draft brief, suggest edits 0.6 Burkett, Marisa 11/17/2017 Implement suggested edits, finalize and file brief (n/c for filing) 0.3 Palmer, Melissa 12/19/2017 Review defendant's brief (15 pages) assign reply writer 0.5 Wicklund, Edward A. 1/2/2018 Draft reply brief 4.3 Palmer, Melissa 35.50 f (Type = Time) and (Client = Nicole Wetzel) e b g Date t Subject Hours Timekeeper 1/2/2018 Review Reply, approve for filing 0.2 Wicklund, Edward A. 1/9/2018 Telephone call w/ client re: Status update 0.3 Graser, Jonnah 6/11/2018 Review order granting remand (26 pages) 0.7 Wicklund, Edward A. 6/11/2018 Review judgment in favor of Nicole Wetzel 0.1 Wicklund, Edward A. 6/19/2018 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 6/19/2018 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 9/4/2018 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 9/6/2018 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Graser, Jonnah 35.50 f (Type = Time) and (Client = Nicole Wetzel) e b g

Exhibit B-All Professional Time

Exhibit B Ledger Wetzel, Nicole Date t Subject Hours Timekeeper 5/22/2017 Review decisions and evidence to determine whether to appeal case 1 Olinsky, Howard D. 6/21/2017 Draft application for Pro Hac Vice admission 0 Wicklund, Edward A. 6/22/2017 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.6 Wicklund, Edward A. 6/22/2017 Review motion to proceed in forma pauperis, approve for filing 0.2 Wicklund, Edward A. 6/23/2017 Review case assigned Hon. Bridget S. Bade, research ind. rules & practices 0.2 Wicklund, Edward A. 6/23/2017 Note remark granting pro hac vice admission 0 Wicklund, Edward A. 6/27/2017 Review order granting In Forma Pauperis application, directing service 0.1 Wicklund, Edward A. 6/27/2017 Review issued summons 0.1 Wicklund, Edward A. 7/11/2017 Review order re: Failure to comply to LR- Magistrate Consent 0 Wicklund, Edward A. 7/11/2017 Review and execute Magistrate Consent 0.1 Wicklund, Edward A. 7/17/2017 Review minute order re: Show cause hearing vacated 0.1 Wicklund, Edward A. 7/17/2017 Review text entry re: Magistrate Judge 0 Wicklund, Edward A. 7/28/2017 Review service executed 0.1 Wicklund, Edward A. 8/18/2017 Review notice of attorney Sarah Martin o/b/o Commissioner of SSA 0.1 Wicklund, Edward A. 8/23/2017 Review scheduling order, calendar dates on task pad 0.3 Wicklund, Edward A. 9/7/2017 Review text order re: Magistrate Judge 0.1 Wicklund, Edward A. 9/7/2017 Review minute order re: reassignment of case to MJ Bridget S. Bade 0.1 Wicklund, Edward A. 9/19/2017 Review answer to complaint 0.1 Wicklund, Edward A. 9/19/2017 Review notice of filing Certfied Copy of Administrative Transcript 0.1 Wicklund, Edward A. 9/25/2017 Preliminary review of transcript - assign Attorney writer 0.3 Wicklund, Edward A. 11/15/2017 Review certified administrative record and take notes 4.3 Palmer, Melissa 11/16/2017 Drafting procedural section, drafting facts 6.8 Palmer, Melissa 11/17/2017 Research issues and drafting argument 7.5 Palmer, Melissa 11/17/2017 Attorney review draft brief, suggest edits 0.6 Burkett, Marisa 11/17/2017 Implement suggested edits, finalize and file brief (n/c for filing) 0.3 Palmer, Melissa 12/19/2017 Review defendant's brief (15 pages) assign reply writer 0.5 Wicklund, Edward A. 23.60 f (Type = Time) and (Client = Nicole Wetzel) and ((Timekeeper = Burkett, Marisa) or (Timekeeper = Olinsky, Howard D.) or (Timekeeper = Palmer, M... e b g

Exhibit C-Attorney Time

Exhibit C Ledger Wetzel, Nicole Date t Subject Hours Timekeeper 1/2/2018 Draft reply brief 4.3 Palmer, Melissa 1/2/2018 Review Reply, approve for filing 0.2 Wicklund, Edward A. 6/11/2018 Review order granting remand (26 pages) 0.7 Wicklund, Edward A. 6/11/2018 Review judgment in favor of Nicole Wetzel 0.1 Wicklund, Edward A. 9/4/2018 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 5.80 f (Type = Time) and (Client = Nicole Wetzel) and ((Timekeeper = Burkett, Marisa) or (Timekeeper = Olinsky, Howard D.) or (Timekeeper = Palmer, M... e b g

Exhibit D- Paralegal Time

Exhibit D Ledger Wetzel, Nicole Date t Subject Hours Timekeeper 5/2/2017 Files received, reviewed and processed from referral source for attorney review 0.6 Lockwood, Tamica 5/2/2017 Correspondence to client re: Prospect Acknowledgement Letter 0.2 Lockwood, Tamica 5/5/2017 Telephone call to Client re: Debt conference call attempt, left vm 0 Lockwood, Tamica 5/22/2017 Telephone call with Client re: Assistance with ifp, left vm 0 Lockwood, Tamica 5/22/2017 Email: Immediate Contact – Regarding your Federal Social Security Case 0.1 Lockwood, Tamica 5/23/2017 Telephone call with Client re: Assistance with in forma pauperis application 0.4 Lockwood, Tamica 5/23/2017 Federal court prospect packet prepared for Client completion 0.6 Lockwood, Tamica 5/23/2017 FDC Prospect Packet Sent via Right Signature 0.2 Lockwood, Tamica 5/23/2017 FDC prospect packet returned via Right Signature, reviewed for completion 0.3 Lockwood, Tamica 6/22/2017 Federal Court -Accept Letter - New FDC Filing 0.3 Smith, Michael P. 7/11/2017 Confer w/ EAW re: Magistrate consent 0.1 Lockwood, Tamica 7/11/2017 Correspondence to clerk re: Magistrate Consent via USPS 0.1 Lockwood, Tamica 7/12/2017 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0.6 Callahan, Michelle 7/27/2017 Compile and file proof of service via CM / ECF 0.3 Callahan, Michelle 9/25/2017 Combine, strip PDF/A, OCR and live bookmark federal court transcript (516 pgs) 0.6 Graser, Jonnah 1/9/2018 Telephone call w/ client re: Status update 0.3 Graser, Jonnah 6/19/2018 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 6/19/2018 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 9/6/2018 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Graser, Jonnah 6.10 f (Type = Time) and (Client = Nicole Wetzel) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Graser, Jonnah) or (Timekeeper = Lockwoo... e b g

Exhibit E- Expenses

Exhibit E Ledger Wetzel, Nicole Date t Subject Amount Timekeeper 7/12/2017 Federal Court-Service of Process-prepare service packets USAO, OGC, AG $17.67 Callahan, Michelle $17.67 f (Client = Nicole Wetzel) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Graser, Jonnah) or (Timekeeper = Lockwood, Tamica) or (Tim... e b g

Exhibit F- Affirmation and Waiver of Direct Payment of EAJA fees

Exhibit F UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA (PRESCOTT DIVISION) -------------------------------------------------------------- NICOLE WETZEL, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------------------------- Nicole Wetzel, hereby states the following: 1. I am the Plaintiff in the above-captioned matter. 2. That I have retained Olinsky Law Group as my attorney for the above-captioned matter. 3. At the time that this action was begun, my net worth was less than $2,000,000.00. 4. If my case is remanded by the Federal Court, either by stipulation or order, my attorney may file for attorney's fees pursuant to the Equal Access to Justice Act (EAJA). I understand that the EAJA fees are paid by the Federal Government and do not come from any back benefits owed to me by the Social Security Administration. 5. I hereby agree to waive direct payment of the EAJA fees and assign said fees to be paid directly to my attorney. 6. I understand that my attorney may still petition the Administration for legal fees for his or her work before the Administration that will be paid from my back benefits. As the Plaintiff in this case, I hereby declare and affirm under penalty of perjury that the information above is true and correct. Executed on May 23, 2017. __________________________ Nicole Wetzel Plaintiff

Memorandum in Support

1 Edward A. Wicklund 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 7 Email: fedct@windisability.com 8 Attorney for Plaintiff Nicole Wetzel 9 10 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 11 12 Nicole Wetzel, 13 Plaintiff, Civil No. 3:17-cv-08117-BSB 14 15 vs. 16 MEMORANDUM IN SUPPORT OF PLAINTIFF'S PETITION FOR 17 Nancy A. Berryhill, Acting COUNSEL FEES ALLOWANCE 18 Commissioner of Social Security, UNDER EQUAL ACCESS TO 19 JUSTICE ACT, 28 U.S.C. § 2412 Defendant 20 21 Memorandum in Support of Plaintiff's Petition for Counsel Fees 22 Allowance Under Equal Access to Justice Act 23 1. This is a memorandum in support of a petition for an award of 24 25 Counsel Fees under the Equal Access to Justice Act 28 U.S.C.A. § 2412 "EAJA." 26 27 28 Page 9 1 2. An EAJA award is available to a "prevailing party" in a case against 2 the Federal Government, including Social Security cases, in the following 3 4 instances: 5 (a) When and if the plaintiff actually "prevails"; 6 (b) The Government's position in litigation is "not substantially 7 8 justified"; 9 (c) Plaintiff is a party whose net assets are worth less than two 10 million dollars; and 11 (d) The case has concluded with a "final order" which is non- 12 13 appealable, or will not be appealed. 14 3. Addressing these elements in reverse order, it is clear that the 15 Plaintiff has met the burden necessary to receive EAJA fees. 16 17 (a) Plaintiff's net worth did not exceed $2,000,000.00 when this 18 action was filed. 19 (b) After service of the summons and complaint, and filing of 20 21 brief by the Plaintiff, parties filed a stipulation to remand, the Court issued a 22 Decision and Order remanding to the Commissioner for calculation of benefits 23 under sentence four 42 U.S.C.A. § 405(g). 24 25 (c) Judgment was entered on June 8, 2018. The Judgment has not 26 been appealed. 27 (d) Plaintiff has prevailed because the District Court remanded 28 Page 10 1 the case under sentence four of 42 U.S.C.A. § 405(g). Shalala v. Schaefer, 509 2 U.S. 292, 113 S. Ct. 2625, 125 L. Ed. 2d 239 (1993). 3 4 4. The commissioner was not substantially justified. As the U. S. 5 Supreme Court has held, "the required 'not substantially justified' allegation imposes no 6 proof burden on the fee applicant. It is, as its text conveys, nothing more than an 7 8 allegation or pleading requirement. The burden of establishing 'that the position of the 9 United States was substantially justified' … must be shouldered by the Government." 10 Scarborough v. Principi, 541 U.S. 401, 124 S. Ct. 1856, 158 L. Ed. 2d 674 (2004) 11 While the fee applicant such as Plaintiff is required to "show" three of the 12 13 four elements—prevailing party status, financial eligibility, and amount sought— 14 Plaintiff need only "to allege" that the position of the government is not 15 substantially justified. Id. 16 17 WHEREFORE, because all four elements of an allowable application for 18 EAJA fees have been proven, petitioner requests that the Court issue an order: 19 20 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,418.76; 21 and 22 2. Awarding Expenses in the amount of $17.67; and 23 3. If the Plaintiff has no debt registered with the Department of Treasury 24 25 subject to offset that the fees be made payable to the attorney. 26 27 28 Page 11 1 Executed this September 5, 2018 2 3 Respectfully submitted, 4 /s/ Edward A. Wicklund 5 Edward A. Wicklund, Esq. 6 Admitted Pro Hac Vice Attorney for Plaintiff 7 Email: fedct@windisability.com 8 To: Elizabeth Strange, Esq. 9 Acting United States Attorney 10 District of Arizona 11 Sarah L. Martin, Esq. 12 Special Assistant United States Attorney Office of the General Counsel 13 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 14 Seattle, WA 98104-7075 15 Fax: (206) 615-2531 Email: sarah.l.martin@ssa.gov 16 Telephone: (206) 615-2936 17 Attorneys for Defendant 18 19 20 21 22 23 24 25 26 27 28 Page 12

Local Rule

1 Edward A. Wicklund 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 7 Email: fedct@windisability.com 8 Attorney for Plaintiff Nicole Wetzel 9 10 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 11 12 Nicole Wetzel, 13 Plaintiff, Civil No. 3:17-cv-08117-BSB 14 15 vs. 16 CERTIFICATE OF LOCAL RULE 54.2 (D) (1) 17 Nancy A. Berryhill, Acting 18 Commissioner of Social Security, 19 Defendant 20 21 Certificate of Local Rule 54.2 (D) (1) 22 23 I certify that I have conferred with Counsel for Defendant via emails on 24 September 5, 2018 regarding Plaintiff's Motion for Attorney's Fees Pursuant to 25 the Equal Access to Justice Act. Opposing counsel is currently assessing their 26 27 position. 28 To: Elizabeth Strange, Esq. Page 13 1 Acting United States Attorney 2 District of Arizona 3 Sarah L. Martin, Esq. 4 Special Assistant United States Attorney Office of the General Counsel 5 Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 7 Fax: (206) 615-2531 8 Email: sarah.l.martin@ssa.gov Telephone: (206) 615-2936 9 Attorneys for Defendant 10 11 September 6, 2018 12 /s/ Edward A. Wicklund 13 Edward A. Wicklund, Esq. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 14

Certificate of Service

1 Edward A. Wicklund 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 7 Email: fedct@windisability.com 8 Attorney for Plaintiff Nicole Wetzel 9 10 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 11 12 Nicole Wetzel, 13 Plaintiff, Civil No. 3:17-cv-08117-BSB 14 15 vs. CERTIFICATE OF SERVICE 16 17 Nancy A. Berryhill, Acting 18 Commissioner of Social Security, 19 Defendant 20 21 Certificate of Service 22 23 I certify that I have electronically moved for EAJA fees with the Clerk of 24 the District Court using the CM/ECF system, which sent notification of such filing 25 to: 26 27 28 To: Elizabeth Strange, Esq. Page 15 1 Acting United States Attorney 2 District of Arizona 3 Sarah L. Martin, Esq. 4 Special Assistant United States Attorney Office of the General Counsel 5 Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 7 Fax: (206) 615-2531 8 Email: sarah.l.martin@ssa.gov Telephone: (206) 615-2936 9 Attorneys for Defendant 10 11 September 6, 2018 12 13 /s/ Edward A. Wicklund Edward A. Wicklund, Esq. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 16

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

1 Elizabeth A. Strange First Assistant United States Attorney 2 District of Arizona 3 Sarah L. Martin 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA37068 8 Fax: (206) 615-2531 sarah.l.martin@ssa.gov 9 Telephone: (206) 615-3705 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Nicole Wetzel, 14 No. CV-17-08117-PCT-BSB 15 Plaintiff, 16 DEFENDANT'S RESPONSE TO vs. PLAINTIFF'S MOTION FOR 17 ATTORNEY FEES Commissioner of Social Security, 18 Defendant. 19 20 21 Defendant, the Commissioner of Social Security, files this response to Plaintiff's 22 request for an award of attorney's fees pursuant to 28 U.S.C. § 2412 as set forth in 23 Plaintiff's Motion (ECF No. 23). The Commissioner has given substantive consideration 24 25 to the merits of Plaintiff's request and found no basis to object. Therefore, Defendant has 26 no objection to this request and will defer to the Court's assessment of the matter. 27 DATED this 10th day of September 2018. 28 1 Respectfully submitted, 2 ELIZABETH A. STRANGE 3 First Assistant United States Attorney District of Arizona 4 5 s/ Sarah L. Martin SARAH L. MARTIN 6 Special Assistant United States Attorney 7 Of Counsel for the Defendant: 8 MATHEW W. PILE 9 Acting Regional Chief Counsel, Social Security Administration 10 Office of the General Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A 11 Seattle, WA 98104-7075 12 13 14 CERTIFICATE OF SERVICE 15 16 I hereby certify that the foregoing Defendant's Response to Plaintiff's Motion for 17 Attorney Fees was filed with the Clerk of the Court on September 10, 2018, using the 18 CM/ECF system which will send notification of such filing to the following: Edward 19 Wicklund. 20 21 s/ Sarah L. Martin 22 SARAH L. MARTIN 23 Special Assistant U.S. Attorney Office of the General Counsel 24 25 26 27 28 2

ORDER: Plaintiff's Motion for Attorney's Fees under the Equal Access to Justice Act [25] is GRANTED and that Plaintiff is awarded $6,418.76 in attorney's fees to be mailed (payable to Plaintiff) to Plaintiff's counsel. Signed by Magistrate Judge Bridget S Bade on 9/11/2018.

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Nicole Wetzel, No. CV-17-08117-PCT-BSB 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Nicole Wetzel has filed a Motion for Award of Attorney's Fees under the 16 Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. (Doc. 23.) Plaintiff requests 17 an award of $6,418.76 in attorney's fees. (Id.) The Commissioner does not object to the 18 motion (Doc. 25), Plaintiff has provided sufficient documentation of the requested 19 attorney's fees (Doc. 24), and the Court finds them reasonable. See 28 U.S.C. §§ 2412(b) 20 (providing for an award of reasonable attorney's fees). Therefore, the Court grants 21 Plaintiff's motion for an award of attorney's fees in the amount of $6,418.76. 22 Accordingly, 23 IT IS ORDERED that Plaintiff's Motion for Attorney's Fees under the Equal 24 Access to Justice Act (Doc. 25) is GRANTED and that Plaintiff is awarded $6,418.76 in 25 attorney's fees to be mailed (payable to Plaintiff) to Plaintiff's counsel. 26 Dated this 11th day of September, 2018. 27 28

Interested in this case?

Sign up to receive real-time updates
Last full docket sheet refresh: 460 days ago. Refresh now
#
Datesort arrow up
Description
1
06/22/2017
COMPLAINT filed by Nicole Wetzel. (Submitted by Edward Wicklund)
1
Civil Cover Sheet
1 Attachment
2
06/22/2017
APPLICATION to Proceed in District Court Without Prepaying Fees or Costs by Nicole Wetzel.
3
06/22/2017
SUMMONS Submitted by Nicole Wetzel. (Submitted by Edward Wicklund)
1
Summons
2
Summons
2 Attachments
4
06/22/2017
This case has been assigned to the Honorable Bridget S Bade. All future pleadings or documents should bear the correct case number: CV-17-08117-PCT-BSB. Magistrate Election form attached.
1
Instructions
1 Attachment
06/23/2017
Remark: Pro hac vice motion granted for Edward A Wicklund on behalf of plaintiff. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
5
06/26/2017
ORDER granting [2] the application for leave to proceed in forma pauperis, without prepayment of costs or fees or the necessity of giving security. Plaintiff shall be responsible for service of the summons and complaint. Signed by Magistrate Judge Bridget S Bade on 6/26/17.
6
06/26/2017
Summons Issued as to Commissioner of Social Security Administration, U.S. Attorney General and U.S. Attorney.
1
Summons
2
Summons
2 Attachments
7
07/11/2017
Order that Nicole Wetzel show cause for failure to comply with LRCiv 3.7(b) before Judge G Murray Snow. Show Cause Hearing set for 8/7/2017 at 08:45 AM before Judge G Murray Snow.
1
Instructions
2
Consent Form
2 Attachments
8
07/14/2017
Agreement to Magistrate Judge Jurisdiction. Party agrees to Magistrate Judge Jurisdiction. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
9
07/17/2017
MINUTE ORDER: That counsel having complied with this Court's Order, the Order to Show Cause Hearing scheduled for August 7, 2017 is hereby VACATED. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
10
07/27/2017
SERVICE EXECUTED filed by Nicole Wetzel: Return of Service re: Summons and Complaint upon US Attorney's Office, Office of General Counsel, Attorney General on 7/18/2017.
11
08/17/2017
NOTICE OF ATTORNEY APPEARANCE: Sarah Martin appearing for Commissioner of Social Security Administration.
12
08/23/2017
SCHEDULING ORDER - The parties must comply with the deadlines and procedures contained in LRCiv 16.1 as set forth herein. If either party fails to fully comply with this Order, the Court may strike the non-complying party's brief, dismiss the case, or remand to the agency as appropriate. See Order for details. Signed by Magistrate Judge Bridget S Bade on 8/22/17.
14
09/06/2017
Agreement to Magistrate Judge Jurisdiction. Party agrees to Magistrate Judge Jurisdiction. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
15
09/06/2017
Minute Order: In accordance with 28 USC 636(c), all parties have voluntarily consented to have Magistrate Judge Bridget S. Bade conduct all further proceedings in this case, including trial and entry of final judgment, and conduct all post-judgment proceedings, with direct review by the Ninth Circuit Court of Appeals, if an appeal is filed. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
16
09/18/2017
ANSWER to [1] Complaint by Commissioner of Social Security Administration.
17
09/18/2017
NOTICE of Filing Certified Copy of Administrative Transcript re: [16] Answer to Complaint filed by Commissioner of Social Security Administration.
1
Certification Page
2
Court Transcript Index
3
Documents Related to Administrative Process Including Transcript of Oral Hearin
4
Payment Documents and Decisions
5
Jurisdictional Documents and Notices
6
Non Disability Related Development
7
Disability Related Development
8
Medical Records Part 1
9
Medical Records Part 2
9 Attachments
18
11/17/2017
OPENING BRIEF by Nicole Wetzel.
19
12/18/2017
RESPONSE BRIEF by Commissioner of Social Security Administration.
20
01/02/2018
REPLY BRIEF by Nicole Wetzel.
21
06/08/2018
Order
22
06/08/2018
Clerks Judgment
23
09/06/2018
First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, by Nicole Wetzel.
1
Text of Proposed Order
1 Attachment
24
09/06/2018
DECLARATION of Edward A. Wicklund., AFFIDAVIT in Support re: [23] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, filed by Nicole Wetzel.
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
Local Rule
9
Certificate of Service
9 Attachments
25
09/10/2018
RESPONSE to Motion re: [23] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, filed by Commissioner of Social Security Administration.
26
09/11/2018
ORDER: Plaintiff's Motion for Attorney's Fees under the Equal Access to Justice Act [25] is GRANTED and that Plaintiff is awarded $6,418.76 in attorney's fees to be mailed (payable to Plaintiff) to Plaintiff's counsel. Signed by Magistrate Judge Bridget S Bade on 9/11/2018.
Would you like this case removed from DocketBird? Request removal.