The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff filed this action on December 14, 2007, seeking review of the Commissioner's denial of her applications for Disability Insurance Benefits and Supplemental Security Income payments. The parties filed Consents to proceed before the undersigned Magistrate Judge on December 26, 2007, and April 16, 2008. Pursuant to the Court's Order, the parties filed a Joint Stipulation on September 29, 2008, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.
Plaintiff was born on December 17, 1963. [Administrative Record ("AR") at 138, 141, 144.] She has a ninth grade education*fn1 and has completed vocational training as a certified nurse's assistant. [AR at 155, 807.] Plaintiff has past relevant work experience as a certified nurse's assistant. [AR at 150, 158-59.]
On April 15, 2002, plaintiff filed her applications for Disability Insurance Benefits and Supplemental Security Income payments, alleging that she has been disabled since July 1, 2001, due to bipolar disorder, lack of concentration, severe depression, and manic episodes. [AR at 138-40, 141, 144-47, 148-57, 703-05.] After her applications were denied initially and on reconsideration, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). [AR at 88-89, 97-107, 706-07.] Plaintiff filed an untimely written request for a hearing on May 13, 2003 [AR at 106-09], and ALJ David M. Ganly issued an order dismissing plaintiff's request for a hearing on May 27, 2003. [AR at 90-93.] Plaintiff requested review of the dismissal on July 18, 2003. [AR at 110-13.] On June 23, 2004, the Appeals Council found that plaintiff had a good reason for not filing her request for a hearing in a timely manner and remanded the case to an ALJ. [AR at 94-96.] A hearing was held on January 3, 2005. [AR at 782-99.] Although counsel for plaintiff was present, plaintiff failed to appear at that hearing. [AR at 782, 784.] A medical expert testified. [AR at 787-99.] A vocational expert was present, but did not testify. [AR at 782, 784.] On August 18, 2005, ALJ Ganly determined that plaintiff was not disabled. [AR at 64-74.] Plaintiff requested review of the hearing decision. [AR at 12.] On May 15, 2006, the Appeals Council granted plaintiff's request for review, vacated the August 18, 2005, decision, and again remanded the case for further proceedings.*fn2 [AR at 54-57.]
A second hearing was held on March 22, 2007, at which time plaintiff appeared with counsel and testified on her own behalf. [AR at 800-27.] A medical expert and a vocational expert also testified. [AR at 808-17, 825-27.] On April 19, 2007, a different ALJ determined that plaintiff was not disabled. [AR at 18-28.] Plaintiff requested review of the hearing decision and additional time to submit new evidence.*fn3 [AR at 12-17.] When the Appeals Council denied plaintiff's request for review on October 26, 2007, the ALJ's decision became the final decision of the Commissioner. [AR at 6-9.] This action followed.
Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
In this context, the term "substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 1257. When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258.
IV. THE EVALUATION OF DISABILITY
Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257.
A. THE FIVE-STEP EVALUATION PROCESS
The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of non-disability is made and the claim is denied. Id. If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a ...