United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL McSHANE, District Judge.
Plaintiff Donna Marie Hansen brings this action for judicial review of the Commissioner's decision denying her application for a period of disability and disability insurance benefits (DIB) under the Social Security Act (Tr. 273-89). This court has jurisdiction pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Plaintiff seeks an Order reversing the decision of the Commissioner and remanding the action to the Social Security Administration for an award of benefits. For the following reasons, the Commissioner's decision is REVERSED and remanded for a finding of disabled under sections 216(i) and 223(d) of the Social Security Act, with payment of DIB benefits as of the alleged onset date of July 10, 2006 through December 31, 2011, the date last insured.
Plaintiff claims she was under a disability as defined by the Social Security Act from July 10, 2006, through December 31, 2011, the date last insured. Plaintiffs reported impairments include fibromyalgia, status post right breast lumpectomy, Chronic Fatigue Syndrome (CFS); somatoform disorder, insomnia, and other mental impairments (including depression, anxiety, and memory lapses). She expressed subjective symptoms of pain, fatigue and related mental symptoms arising from these conditions and impairments, both individually and as to their combined effect [#17 at pp.2-3].
Plaintiff filed her application for disability insurance benefits on October 11, 2006 (Tr. 80-84). Social Security issued its Notice of Denial on December 12, 2006 (Tr. 50-54). Plaintiff filed her Request for Reconsideration on January 30, 2007 (Tr. 55). Social Security issued its Denial of Reconsideration on April 24, 2007 (Tr. 56-58). Plaintiff filed her Request for Hearing on June 13, 2007 (Tr. 59). The hearing was held on February 4, 2009 (Tr. 18-47). The ALJ issued his unfavorable decision on February 17, 2009 (Tr. 8-17). Plaintiff submitted a Request for Review of the hearing decision on April 1, 2009 (Tr. 5-7). Plaintiff timely submitted arguments to the Appeals Council on October 16, 2009 (Tr. 176-191; see Tr. 159-175). On May 26, 2010, the Appeals Council denied Plaintiffs Request for Review and Reversal of the ALJ' s Decision. (Tr. 1-4). Plaintiff timely requested Judicial Review. On July 6, 2011, Judge Marsh for the U.S. District Court for the District of Oregon, reversed and remanded for further proceedings (Tr. 363-383). On September 30, 2011, the Appeals Council issued an order remanding the case to Administrative Law Judge for further proceedings consistent with the order of the Court (Tr. 384-386). On December 18, 2012, the hearing on remand was held before the ALJ (Tr. 296-318). On January 22, 2013, the ALJ issued another unfavorable decision on remand (Tr. 273-289). Again plaintiff timely requested judicial review.
STANDARD OF REVIEW
A claimant is disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Commissioner, 648 F.3d 721, 724 (9th Cir. 2011). The five steps proceed as follows:
1. Is the claimant presently working in a substantially gainful activity? If so, the claimant is not disabled within the meaning of the Social Security Act. If not, proceed to step two. See 20. C.F.R. §§ 404.1520(b), 416.920(b).
2. Is the claimant's impairment severe? If so, proceed to step three. If not, the claimant is not disabled. See 20 C:F.R. §§ 404.1520(c), 416.920(c).
3. Does the impairment "meet or equal" one or more of the specific impairments described in 20 C.F.R. Pt. 404, Subpart. P, App. 1? If so, the claimant is disabled. If not, proceed to step four. See 20 C.P.R.§§ 404.1520(d), 416.920(d).
4. Is the claimant able to do any work that he or she has done in the past? If so, the claimant is not disabled. If not, proceed to step five. See 20 C.F.R. §§ 404.1520(e), 416.920(e).. (5. Is the claimant able to do any other work? If so, the claimant is not disabled. If not, the claimant is disabled. See 20 C.F.R. §§ 404.1520([), 416.920([).
The claimant bears the burden of proof for the first four steps in the process. Bustamante v. Massanari, 262 F.3d 949, 953 (9th Cir. 2001); see also Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987). The Commissioner bears the burden of proof at step five of the process, where the Commissioner must show the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); see also 20 C.F.R. § 404.1566 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, then the claimant is disabled. If, however, the Commissioner proves that the claimant is able to perform other work that exists in significant numbers in the national economy, then the claimant is not disabled. Bustamante v. Massanari, 262 F.3d at 953-54.
The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). To determine whether substantial evidence exists, we review the administrative record as a whole, weighing both the evidence that supports and which detracts from the ALJ's ...