United States District Court, D. Oregon, Eugene Division
JUDY L. DAVIS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION & ORDER
D. CLARKE, Magistrate Judge.
Judy L. Davis seeks judicial review under 42 U.S.C. §
405(g) of the final decision of the Commissioner of the
Social Security Administration denying her application for
Disability Insurance Benefits pursuant to the Social Security
Act. For the reasons below, the Commissioner's decision
is REVERSED and REMANDED for immediate award of
was born November 1, 1954, and is currently 62 years old. Tr.
135. Plaintiff is married, has an eleventh-grade education,
and previously worked as a cook. Tr. 32, 33, 136.
February 2013, Plaintiff filed for a period of disability and
disability benefits; she alleged disability onset as of March
1, 2008. Tr. 135-38. In October 2014, Plaintiff had a hearing
before an administrative law judge ("ALJ"). Tr.
23-73. At the end of the hearing, and after conferring with
her attorney, Plaintiff amended the alleged onset date to
July 1, 2013, which was accepted by the ALJ. Tr. 72.
November 27, 2013, Plaintiffs daughter brought Plaintiff to
Samaritan Albany General Hospital in Albany, Oregon; her
daughter had found Plaintiff "nearly unresponsive, lying
in vomit in bed." Tr. 16, 521. Dr. Stephanie Emery,
M.D., the treating physician, admitted Plaintiff into the
intensive care unit, and Plaintiff remained in the hospital
for a month. Tr. 520, 531. Dr. Emory diagnosed Plaintiff with
a neck abscess and sepsis, which had been caused by a lice
infection and/or spider bite; Dr. Emory described Plaintiff
as being "acutely ill." Tr. 521, 527. Moreover, Dr.
Emory's notes from the November 27 admission indicate
Plaintiff was lethargic, responded unintelligibly, and
"[h]er fine motor skills were lacking on the left
bilateral lower extremities as she did not move on
command." Tr. 16. She noted that Plaintiffs daughter
pointed out that Plaintiffs left arm had not worked well for
about two years and wondered whether her mother may have had
"a stroke at some point." Tr. 521.
observing Plaintiff for a month, on December 31, 2013, Dr.
Emory determined that Plaintiff had suffered from a
cardiovascular accident "6 month[s]
ago." Tr. 531. And, indeed, when Plaintiff was
subsequently admitted to Albany General in May 2014 for a
stroke, Dr. Emory stated Plaintiff was previously
"hospitalized in November  . . . due to neck
abscess due to lice infection. Summer that year she had a
[right side basal ganglia] [cardiovascular accident]"
that led to "residual [left upper extremity/lower
extremity] weakness." Tr. 237.
stated, Plaintiff originally applied for disability in
February 2013, prior to her month-long hospitalization and
May 2014 stroke. At the time, Plaintiff alleged disability
due to diabetes, heart problems, and high blood pressure. Tr.
13. Importantly, for matters of this case, Plaintiffs Social
Security insured status ended on September 30, 2013, her
"date last insured." Tr. 11. Accordingly, to be
eligible for disability benefits, Plaintiff must have
established a disability on or before this date. 42 U.S.C.
§ 416(i)(3); 20 C.F.R. §§ 404.131, 404.315. At
Plaintiffs October 2014 hearing, she argued she suffered a
stroke in summer 2013, before her date last insured, an
argument seemingly corroborated by Dr. Emory's
above-mentioned treatment notes. Tr. 22. The ALJ, however,
held that Plaintiff suffered her first stroke on November 27,
2013, the date she was first admitted into Albany General.
Tr. 13. Hence, because Plaintiffs date last insured was
September 30, 2013, the ALJ ruled that her stroke was
"not a medically determinable impairment for the time
period at issue, " Tr. 13, a critical finding because
the Social Security Administration's hired vocational
expert testified that if Plaintiff had indeed suffered a
stroke before her date last insured, "it would be fair
to say that that would preclude her past work and preclude
any jobs to which she might have transferable skills, "
a determination that would have resulted in a finding of
disability. Tr. 66-70.
finding that the stroke was not a medically determinable
impairment, however, the ALJ concluded that the severe
impairments he did find she suffered from-diabetes mellitus,
hypertension, and obesity-did not preclude Plaintiff from
being capable of performing her past relevant work as a cook;
indeed, he found she could "perform a full range of work
at all exertional levels." Tr. 13, 14, 17. Accordingly,
on February 2, 2015, the ALJ determined Plaintiff was not
disabled as defined by the Social Security Act. On May 24, 2016,
the Appeals Council denied Plaintiffs request for review,
making the ALJ's denial the Commissioner's final
decision. Tr. 1. This timely appeal followed.
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. Comm 'r. Soc. Sec.
Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is
potentially dispositive. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1. Is the claimant performing "substantial gainful
activity"? 20 C.F.R. §§404.1520(a)(4)(i);
416.920(a)(4)(i). This activity is work involving significant
mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510; 416.910. If the
claimant is performing such work, she is not disabled within
the meaning of the Act. 20 C.F.R.
§§404.1520(a)(4)(i); 416.920(a)(4)(i). If the
claimant is not performing substantial gainful activity, the
analysis proceeds to step two.
2. Is the claimant's impairment "severe" under
the Commissioner's regulations? 20 C.F.R. §§
404.1520(a)(4)(H); 416.920(a)(4)(H). Unless expected to
result in death, an impairment is "severe" if it
significantly limits the claimant's physical or mental
ability to do basic work activities. 20 C.F.R. §§
404.1521(a); 416.921(a). This impairment must have lasted or
must be expected to last for a continuous period of at least
12 months. 20 C.F.R. §§ 404.1509; 416.909. If the
claimant does not have a severe impairment, the analysis
ends. 20 C.F.R. §§ 404.1520(a)(4)(H);
416.920(a)(4)(H). If the claimant has a severe impairment,
the analysis proceeds to step three.
3. Does the claimant's severe impairment "meet or
equal" one or more of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1? If so, then the
claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment
does not meet or equal one or more of the listed impairments,
the analysis proceeds to the "residual functional
capacity" ("RFC") assessment.
a. The ALJ must evaluate medical and other relevant evidence
to assess and determine the claimant's RFC. This is an
assessment of work-related activities that the claimant may
still perform on a regular and continuing basis, despite any
limitations imposed by his or her impairments. 20 C.F.R.
§§ 404.1520(e); 404.1545(b)-(c); 416.920(e);
416.945(b)-(c). After the ALJ determines the claimant's
RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her "past relevant
work" with this RFC assessment? If so, then the claimant
is not disabled. 20 C.F.R. §§404.1520(a)(4)(iv);
416.920(a)(4)(iv). If the claimant cannot perform his or her
past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and
work experience, is the claimant able to make an adjustment
to other work that exists in significant numbers in the
national economy? If so, then the claimant is not disabled.
20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v);
404.1560(c); 416.960(c). If the claimant cannot perform such
work, he or she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949,
954-55 (9th Cir. 2001).
claimant bears the burden of proof at steps one through four.
Id. at 954. The Commissioner bears the burden of
proof at step five. Id. at 953-54. At step five, the
Commissioner must show that 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) (internal citations omitted); see
also 20 C.F.R. §§ 404.1566; 416.966
(describing "work which exists in the national
economy"). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the
Commissioner proves that the claimant is able to perform
other work existing in significant numbers in the national
economy, the claimant is not disabled. Bustamante,
262 F.3d at 954-55; Tackett, 180F.3dat 1099.
the five-step analysis, the ALJ found:
1. Plaintiff did not engage in substantial gainful activity
during the period from her amended alleged onset date of July
1, 2013, through her date last insured, September 30, 2013.
(20 CFR § 404.1571 et seq.). Tr. 13.
2. Plaintiff has the following severe medically determinable
impairments: diabetes mellitus, hypertension, and obesity.