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Stone v. Berryhill

United States District Court, D. Oregon

December 1, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Michael J. McShane United States District Judge.

         Plaintiff Alisha M. Stone seeks judicial review of a final decision of the Acting Commissioner of the Social Security Administration (Commissioner) denying her application for Social Security Disability (SSD) insurance benefits. The Commissioner found that Ms. Stone was not disabled prior to December 31, 2011, the date last insured, according to the Social Security Act. This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c) (3). Because Ms. Stone's allegations, credited as true, establish that Ms. Stone is not able to work on a regular and continuing full-time basis, the ALJ's decision is REVERSED and this matter is REMANDED for immediate award of benefits.


         Ms. Stone filed her SSD application on August 13, 2012, claiming a disability onset date of October 22, 2004. Tr. 30.[1] The claim was denied initially on November 2, 2012, and upon reconsideration on February 25, 2013. Id. A hearing was held before an Administrative Law Judge (ALJ) on October 7, 2014 and on October 31, 2014, the ALJ denied Plaintiff's claim. Tr. 27-41. The Appeals Council denied Ms. Michaud's request for a review of the ALJ's decision making the ALJ's decision the final decision of the Commissioner. Tr. 1. This appeal followed.


         The Commissioner's decision will be affirmed if her decision meets all the legal requirements and her legal conclusions are supported by substantial evidence within the record. 42 U.S.C. § 405(g); Batson v. Comm'r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). In determining whether substantial evidence exists, this Court reviews the administrative record as a whole, weighing both the evidence that supports and that which weakens the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

         The court may not substitute its judgment for that of the Commissioner's if an analysis of the evidence on the record as a whole can reasonably support either affirming or reversing the commissioner's decision. Messmer v. Colvin, 2016 WL 53397278 at *1 (D. Or. Sept.23, 2016). However, a reviewing court can only affirm the Commissioner's decision on grounds that the Commissioner considered when making its decision. Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).

         An error that is harmless is not sufficient to reverse an ALJ's decision. Stout, 454 F.3d at 1055-56. “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

         The ALJ is not required to discuss all the evidence presented, but must explain why any evidence of significant probative value has been rejected. Stark v. Shalala, 886 F.Supp. 733, 735 (D. Or. 1995).


         According to the Social Security Act, a person is disabled if she is unable to perform substantial gainful activity (SGA) due to physical or mental impairments that are medically determinable. 42 U.S.C. § 423(d)(1)(A). The impairment must be such that it is expected to result in death, or has lasted or could last for a continuous period of not less than 12 months. Id. When determining whether an individual is disabled, the Social Security Administration applies a five step sequential evaluation process. 20 C.F.R. § 416.920. The burden of proof for the first four steps lies with the claimant and if she meets her burden at each of those steps, the burden of proof shifts to the Commissioner at step five. Id.

         As a preliminary matter, the Plaintiff's Title II insurance lapsed on December 31, 2011. Tr. 32. A claimant seeking Title II disability insurance benefits must establish disability prior to the date last insured. Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). “The burden of proof on this issue is on the claimant.” Morgan v. Sullivan, 945 F.2d 1079, 1080 (9th Cir. 1991). Therefore, Ms. Stone has the burden of establishing that between March 24, 2010, her alleged onset date, and December 31, 2011, her date last insured, she became unable to work for at least 12 continuous months due to any medically determinable physical or mental impairment(s). 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1509.

         At step one, the ALJ determined that Ms. Stone did not engage in any SGA since March 14, 2010, her disability onset date. Tr. 32. At step two, the ALJ concluded that Ms. Stone has severe impairments: residuals from cervical spine fusions, degenerative disc disease of the cervical spine and lumbar spine, and osteoarthritis. The ALJ further found that Ms. Stone suffers from a non-severe impairment; namely, affective disorder. Id.

         I. Step 3: Listing 1.04A

         At step three of the sequential evaluation, the ALJ considers whether a claimant's impairment of combination of impairments meets or equals a listed impairment that presumptively demonstrates disability. 20 C.F.R. § 404.1520(d); 20 C.F.R. pt. 404, subpt. P, app. 1 (Listings). Here, the ALJ found that Ms. Stone's impairments do not individually or combined meet or medically equal the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 33. The ALJ found: “the evidence dated between March 14, 2010 and December 31, 2011 does not satisfy the criteria of section 1.04. Specifically, the record is devoid of evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis with accompanying ineffective ambulation during that period.” Tr. 33.

         Ms. Stone contends that the ALJ's decision at step 3 is not supported by substantial evidence and that the ALJ applied the incorrect legal standard. Pl.'s Br. 11, ECF No. 13. Ms. Stone argues that the ALJ simply asserted that Ms. Stone's impairments did not equal a Listing 1.04A, but otherwise did not address or explain why Ms. Stone's combined impairments do not equal Listing 1.04A. Id.

         Listing 1.04A provides for presumptive disability when the claimant's medically determinable impairments satisfy each of the regulatory criteria. A failure to meet each of the specified medical criteria is a failure to show that a claimant's impairment or combination of impairments matches a listing. Sullivan v. Zebley, 493 U.S. 521, 531 (1990). In order to meet the listing regarding disorders of the spine, the claimant must show a disorder resulting in ...

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