United States District Court, D. Oregon
HALPERN Halpern Law Group, PC Attorney for Plaintiff
J. WILLIAMS United States Attorney RENATA GOWIE Assistant
United States Attorney MICHAEL W. PILE Acting Regional Chief
Counsel SARAH ELIZABETH MOUM Special Assistant United States
Attorney Social Security Administration Attorneys for
OPINION AND ORDER
J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE.
Donna B. seeks judicial review of a final decision of the
Commissioner of the Social Security Administration (SSA) in
which she denied Plaintiff's application for Disability
Insurance Benefits (DIB) under Title II of the Social
reasons that follow, the Court REVERSES the
Commissioner's decision and REMANDS this
matter pursuant to sentence four of 42 U.S.C. § 405(g)
for further proceedings.
filed an application for DIB on March 10, 2014, alleging a
disability onset date of December 1, 2011. Tr. 133-
The application was denied initially and on reconsideration.
An Administrative Law Judge (ALJ) held a hearing on August
22, 2016. Tr. 30-53. At the hearing Plaintiff was represented
by an attorney. Plaintiff and a vocational expert (VE)
issued a decision on October 12, 2016, in which she found
Plaintiff was not disabled before her December 31, 2012, date
last insured and, therefore, is not entitled to benefits. Tr.
18-29. Pursuant to 20 C.F.R. § 404.984(d), that decision
became the final decision of the Commissioner on August 29,
2017, when the Appeals Council denied Plaintiff's request
for review. Tr. 1-6. See Sims v. Apfel, 530 U.S.
103, 106-07 (2000).
was born on September 15, 1955, and was 60 years old at the
time of the hearing. Tr. 133. Plaintiff completed high
school. Tr. 151. The ALJ found Plaintiff has past relevant
work experience as a volunteer coordinator. Tr. 24.
alleges disability during the relevant period due to
"degenerative disease of the lumbar spine, status post
three lumbar surgeries; and right shoulder adhesive
capsulitis." Pl.'s Brief at 1.
when noted, Plaintiff does not challenge the ALJ's
summary of the medical evidence. After carefully reviewing
the medical records, this Court adopts the ALJ's summary
of the medical evidence. See Tr. 22-24.
initial burden of proof rests on the claimant to establish
disability. Molina v. Astrue, 674 F.3d 1104, 1110
(9thCir. 2012). To meet this burden, a claimant
must demonstrate her inability "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).
The ALJ must develop the record when there is ambiguous
evidence or when the record is inadequate to allow for proper
evaluation of the evidence. McLeod v. Astrue, 640
F.3d 881, 885 (9th Cir. 2011) (quoting Mayes
v. Massanari, 276 F.3d 453, 459-60 (9th Cir.
district court must affirm the Commissioner's decision if
it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
42 U.S.C. § 405(g). See also Brewes v. Comm'r of
Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th
Cir. 2012). Substantial evidence is "relevant evidence
that a reasonable mind might accept as adequate to support a
conclusion." Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm'r Soc. Sec. Admin.,
574 F.3d 685, 690 (9th Cir. 2009)). "It is
more than a mere scintilla [of evidence] but less than a
preponderance." Id. (citing Valentine,
574 F.3d at 690).
is responsible for determining credibility, resolving
conflicts in the medical evidence, and resolving ambiguities.
Vasquez v. Astrue, 572 F.3d 586, 591 (9th
Cir. 2009). The court must weigh all of the evidence whether
it supports or detracts from the Commissioner's decision.
Ryan v. Comm'r of Soc. Sec, 528 F.3d 1194, 1198
(9th Cir. 2008). Even when the evidence is
susceptible to more than one rational interpretation, the
court must uphold the Commissioner's findings if they are
supported by inferences reasonably drawn from the record.
Ludwig v. Astrue, 681 F.3d 1047, 1051
(9th Cir. 2012). The court may not substitute its
judgment for that of the Commissioner. Widmark v.
Barnhart, 454 F.3d 1063, 1070 (9th Cir.
The Regulatory Sequential Evaluation
Commissioner has developed a five-step sequential inquiry to
determine whether a claimant is disabled within the meaning
of the Act. Parra v. Astrue, 481 F.3d 742, 746
(9th Cir. 2007). See also 20 C.F.R.
§ 404.1520. Each step is potentially dispositive.
One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity. 20 C.F.R. § 404.1520(a)(4)(I). See also
Keyser v. Comm'r of Soc. Sec, 648 F.3d 721, 724
(9th Cir. 2011).
Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments. 20 C.F.R.
§§ 404.1509, 404.1520(a)(4)(ii). See also
Keyser, 648 F.3d at 724.
Three the claimant is disabled if the Commissioner determines
the claimant's impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity. 20 C.F.R.
§ 404.1520(a) (4) (iii) . See also Keyser, 648
F.3d at 724. The criteria for the listed impairments, known
as Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
Commissioner proceeds beyond Step Three, she must assess the
claimant's residual functional capacity (RFC). The
claimant's RFC is an assessment of the sustained,
work-related physical and mental activities the claimant can
still do on a regular and continuing basis despite her
limitations. 20 C.F.R. § 404.1520(e). See also
Social Security Ruling (SSR) 96-8p. "A 'regular and
continuing basis' means 8 hours a day, for 5 days a week,
or an equivalent schedule." SSR 96-8p, at *1. In other
words, the Social Security Act does not require complete
incapacity to be disabled. Taylor v. Comm'r of Soc.
Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir.
2011) (citing Fair v. Bowen, 885 F.2d 597, 603
(9th Cir. 1989)).
Four the claimant is not disabled if the Commissioner
determines the claimant retains the RFC to perform work she
has done in the past. 20 C.F.R. § 404.1520 (a) (4) (iv).
See also Keyser, 648 F.3d at 724.
Commissioner reaches Step Five, she must determine whether
the claimant is able to do any other work that exists in the
national economy. 20 C.F.R. § 404.1520(a)(4)(v). See
also Keyser, 648 F.3d at 724-25. Here the burden
shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can
perform. Lockwood v. Comm'r Soc. Sec. Admin.,
616 F.3d 1068, 1071 (9th Cir. 2010). The
Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2. If the Commissioner meets this burden, the
claimant is not disabled. 20 C.F.R. § 404.1520(g)(1).
One the ALJ found Plaintiff did not engage in substantial
gainful activity (SGA) from her December 1, 2011, alleged
onset date through her December 31, 2012, date last insured.
Two the ALJ found Plaintiff has the severe impairments of
degenerative disc disease "status-post three lumbar
surgeries (including two lumbar surgeries in December