Veliz v. Colvin, No. 1:2015cv03170 - Document 24 (E.D. Wash. 2016)

Court Description: ORDER granting 17 Plaintiff's Motion for Summary Judgment. The matter is remanded to the Commissioner for additional proceedings. Signed by Magistrate Judge John T. Rodgers. (KW, Case Administrator)

Download PDF

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 CONSUELO VELIZ, No. 1:15-CV-03170-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. 16 17 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 18 No. 17, 22. Attorney Cory J. Brandt represents Consuelo Campos Veliz (Plaintiff); 19 Special Assistant United States Attorney Tina R. Saladino represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 22 record and the briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s 23 Motion for Summary Judgment; DENIES Defendant’s Motion for Summary 24 Judgment; and REMANDS the matter to the Commissioner for additional 25 proceedings pursuant to 42 U.S.C. § 405(g). 26 JURISDICTION 27 Plaintiff filed an application for Disability Insurance Benefits (DIB) on 28 September 12, 2012, alleging disability since January 1, 2010, due to diabetic ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 1 neuropathy, type 1 diabetes, stomach problems, and weight loss. Tr. 163-169, 196, 2 199. The application was denied initially and upon reconsideration. Tr. 96-102, 3 104-108. Administrative Law Judge (ALJ) Laura Valente held a hearing on May 4 16, 2014, and heard testimony from Plaintiff and vocational expert, Trevor 5 Duncan. Tr. 26-69. At the hearing, Plaintiff amended her date of onset to January 6 1, 2011. Tr. 29. The ALJ issued an unfavorable decision on June 26, 2014. Tr. 7 12-21. The Appeals Council denied review on July 29, 2015. Tr. 1-6. The ALJ’s 8 June 26, 2014, decision became the final decision of the Commissioner, which is 9 appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 10 action for judicial review on September 28, 2015. ECF No. 1, 4. 11 STATEMENT OF FACTS 12 The facts of the case are set forth in the administrative hearing transcript, the 13 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 14 here. 15 Plaintiff was 39 years old at the amended onset date. Tr. 163. Plaintiff’s 16 last completed grade was the ninth. Tr. 200. Her work history includes the jobs of 17 cashier at a convenience store, certified nursing assistant, cook/cashier at a seafood 18 restaurant, and babysitting. Tr. 29, 200. She reported she last worked in January 19 of 2010 but then did some babysitting that appeared to be at substantial gainful 20 activities levels through 2010. Tr. 29, 199. 21 22 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 23 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 24 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 25 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 26 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 27 not supported by substantial evidence or if it is based on legal error. Tackett v. 28 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 2 another way, substantial evidence is such relevant evidence as a reasonable mind 3 might accept as adequate to support a conclusion. Richardson v. Perales, 402 4 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 5 interpretation, the court may not substitute its judgment for that of the ALJ. 6 Tackett, 180 F.3d at 1097. Nevertheless, a decision supported by substantial 7 evidence will be set aside if the proper legal standards were not applied in 8 weighing the evidence and making the decision. Brawner v. Secretary of Health 9 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 10 supports the administrative findings, or if conflicting evidence supports a finding 11 of either disability or non-disability, the ALJ’s determination is conclusive. 12 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 13 SEQUENTIAL EVALUATION PROCESS 14 The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. § 404.1520(a); see Bowen 16 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 17 proof rests upon the claimant to establish a prima facie case of entitlement to 18 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once the 19 claimant establishes that physical or mental impairments prevent her from 20 engaging in her previous occupations. 20 C.F.R. § 404.1520(a)(4). If the claimant 21 cannot do her past relevant work, the ALJ proceeds to step five, and the burden 22 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 23 other work, and (2) specific jobs exist in the national economy which the claimant 24 can perform. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 25 (9th Cir. 2004). If the claimant cannot make an adjustment to other work in the 26 national economy, a finding of “disabled” is made. 20 C.F.R. § 404.1520(a)(4)(v). 27 ADMINISTRATIVE DECISION 28 On June 26, 2014, the ALJ issued a decision finding Plaintiff was not ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 2 3 4 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since January 1, 2011,1 the amended date of onset. Tr. 12. At step two, the ALJ determined Plaintiff had the following severe 5 impairments: diabetes mellitus with lower extremity polyneuropathy, right upper 6 extremity carpal tunnel syndrome, and obesity. Tr. 14. 7 At step three, the ALJ found Plaintiff did not have an impairment or 8 combination of impairments that met or medically equaled the severity of one of 9 the listed impairments. Tr. 15. 10 11 12 13 14 15 16 17 18 19 20 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined she could perform a range of light work with the following limitations: She can lift and/or carry up to 20 pounds occasionally and 10 pounds frequently; sit for 2 hours at a time, with usual and customary breaks, 6 of 8 hours in an 8 hour workday; can stand and walk for 4 hours total in an 8 hour workday; bilateral lower extremity push/pull is limited to occasional; bilateral push/pull with the upper extremities is limited to frequent with the same restrictions as for lift/carry; the dominant right upper extremity with regards to fine fingering, gross handling and reaching in all directions is limited to frequent; the postural are all unlimited except for frequent climbing of ramps and stairs, as well as occasional climbing of ladders, ropes and scaffolding; must avoid concentrated exposure to extreme cold, heat, vibration, and hazards, such as heights and dangerous moving machinery. 21 22 23 1 The ALJ’s decision states that Plaintiff amended her onset date to January 24 11, 2011. Tr. 12, 14, 21. However a review of the hearing transcript reveals that 25 Plaintiff amended her onset date to January 1, 2011. Tr. 29. Therefore, the ALJ’s 26 reliance on the January 11, 2011, onset appears to be a scribner’s error and this 27 Court will honor the January 1, 2011, onset date agreed to by Plaintiff at her 28 hearing. ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 Tr. 16. The ALJ identified Plaintiff’s past relevant work as cashier II, nurse aid, 2 seafood fry cook, and kitchen helper and concluded that Plaintiff was not able to 3 perform her past relevant work. Tr. 19. At step five, the ALJ determined that, considering Plaintiff’s age, education, 4 5 work experience and residual functional capacity, and based on the testimony of 6 the vocational expert, there were other jobs that exist in significant numbers in the 7 national economy Plaintiff could perform, including the jobs of parking lot 8 attendant and call out operator. Tr. 20. The ALJ concluded Plaintiff was not under 9 a disability within the meaning of the Social Security Act at any time from the 10 amended date of onset, January 1, 2011, through the date of the ALJ’s decision, 11 June 26, 2014. Tr. 21. 12 ISSUES The question presented is whether substantial evidence supports the ALJ’s 13 14 decision denying benefits and, if so, whether that decision is based on proper legal 15 standards. Plaintiff contends the ALJ erred by (1) failing to properly weigh 16 medical source opinions; (2) failing to properly consider Plaintiff’s testimony 17 about the severity of her symptoms; and (3) failing to meet her step five burden. 18 19 20 21 DISCUSSION A. Medical Opinions Plaintiff challenges the weight the ALJ gave to the opinions of Vlastimil J. Calayan, M.D., and R. Richard Sloop, M.D. ECF No. 7 at 8-12. 22 In weighing medical source opinions, the ALJ should distinguish between 23 three different types of physicians: (1) treating physicians, who actually treat the 24 claimant; (2) examining physicians, who examine but do not treat the claimant; 25 and, (3) nonexamining physicians who neither treat nor examine the claimant. 26 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 27 weight to the opinion of a treating physician than to the opinion of an examining 28 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 should give more weight to the opinion of an examining physician than to the 2 opinion of a nonexamining physician. Id. 3 When a treating physician’s opinion is not contradicted by another 4 physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 5 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 6 physician’s opinion is contradicted by another physician, the ALJ is only required 7 to provide “specific and legitimate reasons” for rejecting the opinion. Murray v. 8 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when an examining 9 physician’s opinion is not contradicted by another physician, the ALJ may reject 10 the opinion only for “clear and convincing” reasons, and when an examining 11 physician’s opinion is contradicted by another physician, the ALJ is only required 12 to provide “specific and legitimate reasons” for rejecting the opinion. Lester, 81 13 F.2d at 830-831. 14 The specific and legitimate standard can be met by the ALJ setting out a 15 detailed and thorough summary of the facts and conflicting clinical evidence, 16 stating her interpretation thereof, and making findings. Magallanes v. Bowen, 881 17 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer her 18 conclusions, she “must set forth [her] interpretations and explain why they, rather 19 than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 20 1988). 21 1. Vlastimil J. Calayan, M.D. 22 On May 12, 2014, Dr. Calayan completed a Medical Report form. Tr. 1541- 23 1542. He opined that Plaintiff would have to lie down or elevate her legs during 24 the day at a rate that would not be accommodated by two fifteen minute breaks and 25 an hour long lunch. Tr. 1541. He stated that she was unable to tolerate prolonged 26 standing and sitting due to leg pain and that she walked with a cane for support. 27 Id. He identified Plaintiff’s prognosis as guarded, stating that the condition 28 appeared to have progressed based on nerve conduction studies. Tr. 1542. He ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 further stated that work on a regular and continuous basis would cause Plaintiff’s 2 condition to deteriorate and if Plaintiff attempted to work a forty hour week, he 3 would anticipate that she would miss work four or more days per month. Id. 4 Finally, he stated that these limitations had existed since June of 2011. Id 5 The ALJ gave Dr. Calayan’s opinion “no weight” because (1) it was not 6 supported by objective evidence, (2) it conflicted with Dr. Calayan’s own 7 treatment records, and (3) it was completed on a template form created by 8 Plaintiff’s attorney, which included leading questions. Tr. 18. 9 The first reason the ALJ provided for rejecting Dr. Calayan’s opinion is not 10 legally sufficient. The ALJ simply stated that the opinion was not supported by 11 objective evidence, but failed to identify what objective evidence contradicted the 12 opinion. The ALJ is required to do more than offer her conclusions, she “must set 13 forth [her] interpretations and explain why they, rather than the doctors’, are 14 correct.” Embrey, 849 F.2d at 421-422. Without more than a conclusion, this 15 reason fails to meet even the lessor standard of specific and legitimate. 16 The second reason the ALJ provided for rejecting Dr. Calayan’s opinion, 17 that it conflicted with his own treatment records, is not legally sufficient. 18 Inconsistencies between a provider’s opinion and his treatment notes can be a clear 19 and convincing reason to reject an opinion. Bayliss v. Barnhart, 427 F.3d 1211, 20 1216 (9th Cir. 2005). Here, the ALJ cited one treatment record dated February 6, 21 2013, asserting that physical examination was largely normal. Tr. 18, citing Tr. 22 1451-1454. However, Dr. Calayan had treated Plaintiff form October 1, 2012, to 23 April 25, 2014, when he gave his opinion. Tr. 1541. On October 29, 2013, 24 Plaintiff reported to Dr. Calayan that she was experiencing pain with prolonged 25 standing. Tr. 1371. On March 14, 2013, Plaintiff had an abnormal foot exam with 26 diminished sensation in the left foot, and she was ambulating normally with a cane. 27 Tr. 1461. On October 29, 2013, and March 24, 2014, Dr. Calayan stated she had a 28 normal gait and station and was ambulating without a cane. Tr. 1475, 1482. ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 Additionally on March 24, 2014, she had another abnormal foot exam with 2 diminished sensation in her left foot. Tr. 1482. Considering the length of time Dr. 3 Calayan treated Plaintiff and that there was other evidence contained in his 4 treatment records that supported his opinion, the ALJ’s reliance on a single 5 treatment record was not enough to constitute substantial evidence. Therefore, this 6 reason is insufficient to reject Dr. Calayan’s opinion. 7 The ALJ’s third reason for rejecting Dr. Calayan’s opinion, that it was on a 8 template form created by Plaintiff’s counsel, is not a legally sufficient reason to 9 reject the opinion. First, the fact that an opinion was procured by counsel is not a 10 specific and legitimate reason to reject an opinion in the absence of other evidence 11 to undermine the credibility of the opinion. See Reddick v. Chater, 157 F.3d 715, 12 726 (9th Cir. 1998); Saelee v. Chater, 94 F.3d 520, 523 (9th Cir. 1996) (the source 13 of the referral was found to be relevant where the ALJ found “actual improprieties” 14 to question the credibility of the medical report). Here, the ALJ failed to provide 15 another legally sufficient reason to undermine the credibility of the opinion. 16 Second, the fact that the opinion is on a template form is also irrelevant. 17 While the Court recognizes that there is a preference for narrative opinions over 18 checkoff opinions, See Murray, 722 F.2d at 501, this form does not rise to the level 19 of a check off opinion. The form requires multiple descriptions of the diagnoses, 20 symptoms, signs, and explanations. Tr. 1541-1542. 21 Considering the ALJ failed to provide a legally sufficient reason that met 22 even the lessor standard of specific and legitimate in her rejection of Dr. Calayan’s 23 opinion, the case is remanded for additional proceedings. 24 2. R. Richard Sloop, M.D. 25 On March 4, 2013, Dr. Sloop evaluated Plaintiff at the request of Dr. 26 Calayan. Tr. 1456-1458. He diagnosed Plaintiff with diabetic lumbosacral 27 radiculoplexus neuropathy starting in the left lower extremity two years ago with 28 spread to the right lower extremity approximately six months ago and mild ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 peripheral neuropathy from diabetes. Tr. 1456. On examination, she had 2 prominent weakness in the lower extremities, a steppage gait with foot drop on the 3 left, she was not able to walk on heels or toes, her reflexes were absent at the 4 ankles, and sensation was diminished in the ankles bilaterally and in the left mid- 5 foot. Tr. 1457. Dr. Sloop stated that Plaintiff “did work until January of 2010 as a 6 nursing assistance. She has not been able to work since then because of the pain 7 and weakness.” Tr. 1456. The ALJ concluded that Dr. Sloop inferred that Plaintiff 8 was unable to work because of pain and fatigue.2 Tr. 18. The ALJ then dismissed 9 this inferred opinion by giving it no weight because (1) Dr. Sloop relied heavily on 10 Plaintiff’s subjective report of symptoms, (2) Plaintiff failed to follow Dr. Sloop’s 11 treatment plan, and (3) Dr. Sloop did not assign work-related limitations. Id. 12 The ALJ’s first reason for rejecting Dr. Sloop’s inferred opinion, that Dr. 13 Sloop relied heavily on Plaintiff’s subjective reports, is not a legally sufficient 14 reason. An ALJ may discount the opinions of a treating provider because they 15 were based “to a large extent” on the claimant’s reports of symptoms, which the 16 ALJ found not reliable; however, the ALJ must provide a basis for her 17 determination that the treating provider’s opinion was based “to a large extent” on 18 the claimant’s symptom reports. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 19 2014). Here, the ALJ simply concluded that the opinion was based on Plaintiff’s 20 self-reported limitations without providing a bases for such a conclusion. 21 Therefore, this reason is insufficient to meet the specific and legitimate standard. 22 23 2 The Court notes that this is an “inferred” opinion based on Dr. Sloop’s 24 statement that Plaintiff “did work until January of 2010 as a nursing assistant. She 25 has not been able to work since then because of the pain and weakness.” Tr. 18, 26 1456. However, this statement is contained in the section primarily discussing 27 Plaintiff’s medical history and not a conclusion by the provider. Tr. 1456. 28 Therefore, it is questionable if this is even a medical source opinion by Dr. Sloop. ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 Plaintiff failed to challenge the remaining two reasons the ALJ provided for 2 rejecting Dr. Sloop’s opinion. ECF No. 17 at 11-12. See Carmickle v. Comm’r, 3 Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (the court ordinarily will 4 not consider matters on appeal that are not specifically and distinctly argued in an 5 appellant’s opening brief). However, since the case is being remanded and the 6 ALJ did error as to the first reason he rejected Dr. Sloop’s opinion, the ALJ is 7 further instructed readdress the inferred opinion on remand. 8 B. 9 10 Credibility Plaintiff contests the ALJ’s adverse credibility determination in this case. ECF No. 17 at 12-15. 11 It is generally the province of the ALJ to make credibility determinations, 12 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 13 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 14 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 15 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 16 1273, 1281 (9th Cir. 1996); Lester, 81 F.3d at 834. “General findings are 17 insufficient: rather the ALJ must identify what testimony is not credible and what 18 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834. 19 The ALJ found Plaintiff less than fully credible concerning the intensity, 20 persistence, and limiting effects of her symptoms. Tr. 17. The ALJ reasoned that 21 Plaintiff was less than fully credible because (1) the medical evidence did not 22 support her allegations, (2) she misreported her substance abuse, and (3) she failed 23 to follow prescribed treatment. 24 Considering the case is being remanded for the ALJ to further address 25 medical source opinions and the evaluation of a claimant’s statements regarding 26 limitations relies in part on the assessment of the medical evidence, See 20 C.F.R. 27 § 404.1529(c); S.S.R. 16-3p, the ALJ is further instructed to make a new 28 assessment as to whether Plaintiff’s subjective symptom statements are consistent ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 with the record as a whole in accord with S.S.R. 16-3p. 2 C. 3 Step Five Plaintiff argues the ALJ failed to meet her step five burden because the 4 hypothetical given to the vocational expert lacked limitations addressed by Dr. 5 Calayan and Dr. Sloop. ECF No. 17 at 15-16. 6 At step five, the Commissioner has the burden to show that (1) the claimant 7 can make an adjustment to other work, and (2) specific jobs exist in the national 8 economy which the claimant can perform. Batson, 359 F.3d at 1193-1194. If the 9 limitations are nonexertional and not covered by the grids, a vocational expert is 10 required to identify if jobs match the abilities of the claimant, given her limitations. 11 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 12 Because the case is being remanded for the ALJ to properly address the 13 medical source opinions, the ALJ is further instructed to make a new residual 14 functional capacity determination affecting both the step four and step five 15 determinations on remand. 16 REMEDY 17 The decision whether to remand for further proceedings or reverse and 18 award benefits is within the discretion of the district court. McAllister v. Sullivan, 19 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 20 where “no useful purpose would be served by further administrative proceedings, 21 or where the record has been thoroughly developed,” Varney v. Secretary of Health 22 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 23 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 24 (9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 25 (noting that a district court may abuse its discretion not to remand for benefits 26 when all of these conditions are met). This policy is based on the “need to 27 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 28 outstanding issues that must be resolved before a determination can be made, and it ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 is not clear from the record that the ALJ would be required to find a claimant 2 disabled if all the evidence were properly evaluated, remand is appropriate. See 3 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 4 F.3d 1172, 1179-80 (9th Cir. 2000). 5 In this case, it is not clear from the record that the ALJ would be required to 6 find Plaintiff disabled if all the evidence were properly evaluated. Further 7 proceedings are necessary for the ALJ to properly weigh medical source opinions 8 in the record, as well as address Plaintiff’s symptom statements in accord with 9 S.S.R. 16-3p and the residual functional capacity determination in light of the 10 reconsidered medical source opinions. Furthermore, the ALJ is instructed to take 11 testimony from a medical expert and a vocational expert and correctly identify 12 Plaintiff’s date of onset on remand. 13 CONCLUSION 14 Accordingly, IT IS ORDERED: 15 1. 16 17 Defendant’s Motion for Summary Judgment, ECF No. 22, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is 18 GRANTED, in part, and the matter is REMANDED to the Commissioner for 19 additional proceedings consistent with this Order. 20 3. Application for attorney fees may be filed by separate motion. 21 The District Court Executive is directed to file this Order and provide a copy 22 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 23 and the file shall be CLOSED. 24 DATED November 14, 2016. 25 26 27 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 12

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.