The opinion of the court was delivered by: Alicia G. Rosenberg United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Matthew D. Berkelhammer ("Berkelhammer") filed a Complaint on January 28, 2008. Pursuant to 28 U.S.C. § 636(c), the parties filed Consents to proceed before Magistrate Judge Rosenberg on February 6 and February 19, 2008. (Dkt. Nos. 6-7.) The parties filed a Joint Stipulation ("JS") on October 6, 2008, that addresses the disputed issues in the case. The Commissioner filed the certified administrative record ("AR"). The Court has taken the Joint Stipulation under submission without oral argument.
Having reviewed the entire file, the Court remands this matter to the Commissioner for proceedings consistent with this opinion.
On June 6, 2005, Berkelhammer filed an application for Social Security Disability Insurance benefits, alleging disability since August 19, 2003. AR 14. The application was denied. AR 42. Berkelhammer requested a hearing on February 7, 2006. AR 50. An Administrative Law Judge ("ALJ") conducted a hearing on February 26, 2007. AR 28-41. On May 24, 2007, the ALJ issued a decision denying benefits. AR 11-18.
Berkelhammer filed a Request for Review of the ALJ's decision on June 11, 2007. AR 9-10. Berkelhammer filed a brief dated August 6, 2007 and a pre-operative consultation dated August 13, 2007, in which he notified the Appeals Council that he was scheduled for surgery (anterior lumbar interbody fusion and posterior spinal fusion) on August 22, 2007. AR 6, 116-123. On November 26, 2007, the Appeals Council denied the request for review. AR 3-6.
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 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, "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. 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. 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.
III. EVALUATION OF DISABILITY
A person qualifies as disabled, and thereby eligible for such benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S.Ct. 376, 157 L.Ed. 2d 333 (2003).
The ALJ found that Berkelhammer has "severe" impairments consisting of "degenerative disc disease of the lumbar spine and cervical spine." AR 16. Berkelhammer's "ability to perform work-related activities only is limited by his inability to lift and carry more than twenty pounds on an occasional basis and ten pounds on a frequent basis, by his inability to do more than occasional climbing, balancing, stooping, kneeling, crouching, and crawling, and by his inability to perform more than occasional overhead reaching." Id. The ALJ found ...