The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge
The parties have consented, under 28 U.S.C. § 636(c), to the jurisdiction of the undersigned Magistrate Judge. Plaintiff seeks review of the Commissioner's denial of disability benefits. As discussed below, the court finds that the Commissioner's decision should be reversed and this matter remanded for further proceedings.
Plaintiff Gilberto Diaz was born on February 6, 1964, and was forty-three years old at the time of his administrative hearing. [Administrative Record ("AR") 8, 191.] He has a fifth grade education in Mexico and past relevant work experience as a construction worker, fruit picker and packager, cement laborer, and furniture assembler and installer. [AR 16, 236.] Plaintiff alleges disability on the basis of a gun shot wound to his chest and weakness in his right hand and leg. [AR 138.]
II. PROCEEDINGS IN THIS COURT
Plaintiff's complaint was lodged on April 1, 2008, and filed on April 10, 2008. On October 7, 2008, defendant filed an answer and plaintiff's Administrative Record ("AR"). On December 9, 2008, the parties filed their Joint Stipulation ("JS") identifying matters not in dispute, issues in dispute, the positions of the parties, and the relief sought by each party. This matter has been taken under submission without oral argument.
III. PRIOR ADMINISTRATIVE PROCEEDINGS
Plaintiff applied for disability insurance benefits ("DIB") and supplemental security income ("SSI") on January 22, 2007, alleging disability since February 4, 2006. [AR 126.] After the applications were denied initially and on reconsideration, plaintiff requested an administrative hearing, which was held on October 25, 2007, before Administrative Law Judge ("ALJ") John W. Belcher. [AR 8.] Plaintiff appeared with counsel, and testimony was taken from plaintiff, third party witness Gloria Avila, medical expert Sami Nafoosi, and vocational expert Sandra Fioretti. [AR 9.] The ALJ denied benefits in a decision filed on November 23, 2007. [AR 126-35.] When the Appeals Council denied review on February 26, 2008, the ALJ's decision became the Commissioner's final decision. [AR 2-4.]
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's (or ALJ's) findings and decision should be upheld if they are free of legal error and supported by substantial evidence. However, if the court determines that a finding is based on legal error or is not supported by substantial evidence in the record, the court may reject the finding and set aside the decision to deny benefits. See Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720. It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. To determine whether substantial evidence supports a finding, a court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id. "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162.
A. THE FIVE-STEP EVALUATION
To be eligible for disability benefits a claimant must demonstrate a medically determinable impairment which prevents the claimant from engaging in substantial gainful activity and which is expected to result in death or to last for a continuous period of at least twelve months. Tackett, ...