United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge.
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.
AND FACTUAL BACKGROUND
Stone filed her SSD application on August 13, 2012, claiming
a disability onset date of October 22, 2004. Tr.
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.
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).
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).
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).
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).
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.
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.
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
Step 3: Listing 1.04A
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.
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.
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