The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge
Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's applications for disability insurance benefits and supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.
On July 7, 2006, plaintiff filed applications for disability insurance benefits and SSI benefits. [AR 21, 303]. Plaintiff alleged that he had been disabled since March 10, 2003, due to severe back pain. [AR 214]. On May 29, 2008, an Administrative Law Judge (the "ALJ") denied benefits in a written hearing decision. [Administrative Record ("AR") 31-37]. The ALJ noted that plaintiff had filed prior applications for disability insurance benefits and SSI benefits that were finally denied on June 12, 2006. [AR 31].
Applying a presumption of continuing non-disability, the ALJ concluded that plaintiff had not shown "changed circumstances" from the date of the prior decision warranting any change in the prior ALJ's findings.*fn1 The ALJ found that plaintiff was last insured for disability insurance purposes through December 31, 2007. The ALJ determined that plaintiff had severe lumbar degenerative disc disease, but that he retained the residual functional capacity ("RFC") to perform light work with occasional climbing, stooping, kneeling, and crouching. The ALJ found that plaintiff could not perform his past relevant work, but that alternative work within his RFC existed in significant numbers in the national economy. [AR 36-37].
The Appeals Council denied plaintiff's request for review of the ALJ's decision. [AR 10]. Subsequently, however, the Appeals Council vacated its decision denying the request for review solely as it pertained to plaintiff's application for SSI benefits. The Appeals Council found that plaintiff had submitted new and material medical evidence that showed changed circumstances reflecting a greater level of disability than the ALJ found. [AR 2]. Accordingly, the Appeals Council vacated the ALJ's decision denying plaintiff's application for SSI benefits and remanded the matter for further administrative proceedings. Because the new evidence was dated after December 31, 2007, plaintiff's date last insured, the Appeals Council did not vacate the ALJ's decision denying disability insurance benefits. [AR 5-7].
Plaintiff subsequently filed this action seeking judicial review of the Commissioner's final decision denying his claim for disability insurance benefits.
The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).
Plaintiff contends that the ALJ erred in concluding that plaintiff failed to show a deterioration in his lumbar spine impairment prior to his date last insured that had lasted, or could be expected to last, for twelve consecutive months. [See JS 5-12].
To satisfy the criteria for disability under Social Security Act, a disabling physical or mental impairment must last, or be expected to last, no less than twelve consecutive months, or it must be expected to result in death. See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1509, 416.909; see also Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 1989). Plaintiff bears the burden of proving that the durational requirement is satisfied. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Young v. Sullivan, 911 F.2d 180, 181 (9th Cir. 1990); see 20 C.F.R. §§ 404.1509 & 416.909. Plaintiff also bears the burden of proving that he was disabled prior to December 31, 2007, his date last insured. See 42 U.S.C. § 423(a)(1)(A); Flatten v. Sec's of Health & Human Servs., 44 F.3d 1453, 1459 (9th Cir. 1995); Morgan v. Sullivan, 945 F.2d 1079, 1080 (9th Cir. 1991). Thus, plaintiff must prove that prior to his date last insured, he had a disabling physical or mental impairment that had lasted, or was expected to last, at least twelve consecutive months, or was expected to result in death.
The ALJ summarized the relevant evidence relating to plaintiff's lumbar degenerative disc disease as follows. In August 2007, plaintiff was seen for complaints of worsening low back pain radiating into his right lower extremity with associated numbness and tingling. [AR 34]. Plaintiff exhibited "some significant clinical findings." [AR 34]. His treating physician, Dr. Catalino Dureza, opined that plaintiff was temporarily totally disabled for ...