MEMORANDUM, OPINION, AND ORDER

GAIL J. STANDISH, Magistrate Judge.

INTRODUCTION

This social security benefits case raises one narrow issue: did the administrative law judge (ALJ) err by concluding that Willis did not suffer from a listed impairment? Because the answer is "No," the Court affirms the Commissioner's determination that Willis is not disabled.

PROCEDURAL HISTORY

Willis filed applications for disability insurance benefits and supplemental security income payments on October 18, 2011. [Admin. Rec. ("AR") 159-68.] Willis claimed that, as of June 1, 2007, a screw in her left leg caused problems walking and standing. [AR 182; see also AR 101.] The state agency denied the applications on January 26, 2012. [AR 101-06.] Thereafter, ALJ Joseph P. Lisiecki III held hearings on November 15, 2012 and April 2, 2013.1 [AR 42, 57.] Willis was unrepresented at the first hearing and was represented by counsel in the second one. [AR 42, 57.] On April 11, 2013, the ALJ issued a written opinion concluding that Willis was not disabled within the meaning of the Social Security Act. [AR 26-35.] Willis appealed to the Appeals Council, who denied review. [AR 6, 14.] This case followed.

GOVERNING STANDARD

Under 42 U.S.C. § 405(g), the Court reviews the Commissioner's decision to determine if: (1) the Commissioner's findings are supported by substantial evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also Hoopai, 499 F.3d at 1074.

Even if Willis shows the ALJ committed legal error, "[r]eversal on account of error is not automatic, but requires a determination of prejudice." Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Shinseki v. Sanders, 556 U.S. 396, 409 (2009)). And "[w]here harmfulness of the error is not apparent from the circumstances, the party seeking reversal must explain how the error caused harm." McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011).

That said, the burden of showing harm is still low. "Where the circumstances of the case show a substantial likelihood of prejudice, remand is appropriate so that the agency can decide whether re-consideration is necessary. By contrast, where harmlessness is clear and not a borderline question, remand for reconsideration is not appropriate." Id. at 888. Courts have "affirmed under the rubric of harmless error where the mistake was nonprejudicial to the claimant or irrelevant to the ALJ's ultimate disability conclusion." Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). In sum, "ALJ errors in social security cases are harmless if they are `inconsequential to the ultimate nondisability determination' and . . . `a reviewing court cannot consider [an] error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination.'" Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. July 10, 2015) (quoting Stout, 454 F.3d at 1055-56).

To determine whether an error was harmless, this Court may consider "the likelihood that the result would have been different" and "the impact of the error on the public perception of such proceedings." Ludwig, 681 F.3d at 1054. It may not, however, "appl[y] harmless error in a way that affirm[s] the agency on a ground not invoked by the ALJ." Marsh, 792 F.3d at 1172. Ultimately, "[t]he nature of [the] application [of the harmless error doctrine] is fact-intensive—`no presumptions operate' and `[the Court] must analyze harmlessness is light of the circumstances of the case.'" Id. (quoting Molina, 674 F.3d at 1121).

DISCUSSION

Applying the five-step sequential evaluation process, the ALJ found that Willis was not disabled. See 20 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1).2 At Step Two, the ALJ concluded that Willis suffered from the "following severe impairments: status post-surgery to the left hip, with insertion of [a] screw that is slipping; degenerative disc disease of the lumbar and cervical spine; depression; and anxiety (20 CFR 404.1520(c) and 416.920(c))." [AR 28.] At Step Three, the ALJ concluded that Willis's conditions satisfied neither Listing 1.02 nor Listing 1.04. [AR 28-29.]

Willis's sole argument for reversal is that the ALJ did not consider Listing 1.03. If Willis suffers from a listed impairment, "`[s]he is presumed unable to work and is awarded benefits without a determination whether [s]he actually can perform [her] own prior work or other work.'" Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (quoting Sullivan v. Zebley, 493 U.S. 521, 531 (1990)). Accordingly, "[l]isted impairments are purposefully set at a high level of severity because the listings were designed to operate as a presumption of disability that makes further inquiry unnecessary." [Id.] Willis "bears the burden of proving that . . . she has an impairment that meets or equals the criteria of an impairment listed in Appendix 1 of the Commissioner's regulations." Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (internal quotation marks omitted).

Willis's claim fails for at least two reasons. First, Willis has not made a plausible case that Listing 1.03 applies. Listing 1.03 requires Willis to demonstrate that she underwent "[r]econstructive surgery or surgical arthrodesis of a major weight-bearing joint, with inability to ambulate effectively, as defined in 1.00B2b, and return to effective ambulation did not occur, or is not expected to occur, within 12 months of onset." Willis points to no evidence in the record demonstrating that she had reconstructive surgery or surgicial arthrodesis, so the ALJ had no reason to consider, let alone apply, the listing.

Recognizing this basic defect, Willis now argues that her "impairments are therefore equal in severity to that in listing 1.03." [Dkt. 21 ("Pl.'s Br.") at 7.] It is true that "[i]f a claimant's impairment does not meet the criteria specified in the listings, he or she is still disabled if the impairment"—or, as in Willis's case, multiple impairments— equals a listed impairment." Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001) (citing 20 C.F.R. §§ 404.1520(d) & 404.1526(a)). But "[a]n ALJ is not required to discuss the combined effects of a claimant's impairments or compare them to any listing in an equivalency determination, unless the claimant presents evidence in an effort to establish equivalence." Kennedy v. Colvin, 738 F.3d 1172, 1178 (9th Cir. 2013) (quoting Burch, 400 F.3d at 683). Here, Willis does not even attempt to explain how her hip surgery—which involved inserting a screw [AR 304]—was equivalent to reconstructive surgery or surgical arthrodesis. Nor did Willis's counsel make such an argument at the second hearing, though she asked the ALJ to consider other listed impairments. [AR 59 (arguing that Willis "would meet listing 1.02A")]; see Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) ("We now hold that, at least when Plaintiffs are represented by counsel, they must raise all issues and evidence at their administrative hearings in order to preserve them on appeal.") (quoted in Phillips v. Colvin, 593 Fed. App'x 683, 684 (9th Cir. Feb. 13, 2015)). Accordingly, the ALJ had no evidence from which to conclude equivalence existed.

Second, even assuming Willis could make a plausible claim to impairment under Listing 1.03, the ALJ's lack of consideration is harmless error. When concluding that Listing 1.02 does not apply, the ALJ was "not persuaded that the claimant is unable to ambulate effectively within the meaning of 1.00B2b." [AR 30.] Willis does not challenge that determination as lacking substantial evidence. Yet, to qualify for Listing 1.03, Willis must show that she had an "inability to ambulate effectively, as defined in 1.00B2b[.]" Because the ALJ found that element lacking—a conclusion that Willis does not appear to contest, any remand would be pointless because this Court can "confidently conclude that" the ALJ would not "have reached a different disability determination." See Marsh, 792 F.3d at 1173.3

CONCLUSION

Notiwthstanding the outcome, the Court sympathizes with Willis. Her hip condition appears to be serious and painful, and her mobility is certainly limited. Nonetheless, her conditions are not so severe that they satisfy the "high level of severity" demanded by Listing 1.03. See Kennedy, 738 F.3d at 1176.

For the foregoing reasons, IT IS ORDERED that Judgment be entered in favor of the Commissioner.

IT IS HEREBY ORDERED.