The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge
On September 25, 2007, plaintiff Carol L. LeBlanc ("plaintiff") filed a complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge.
This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; September 27, 2007 Case Management Order, ¶ 5.
Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge ("ALJ") are supported by substantial evidence and are free from material error.*fn1
II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
In April and May 2004, plaintiff filed applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"). (Administrative Record ("AR") 16, 183-86). Plaintiff asserted that she became disabled on March 20, 2003, due to spina bifida occulta, hypertension and congestive heart failure. (AR 204-05).
The ALJ held hearings on March 22, 2006, and September 6, 2006. (AR 31-87). On November 16, 2006, after examining the medical record and hearing testimony from plaintiff (who was represented by counsel) and medical and vocational experts, the ALJ issued his first decision in which he determined that plaintiff was not disabled through the date of the decision. (AR 123-27). On February 15, 2007, the Appeals Council vacated the ALJ's first decision, and remanded the matter. (AR 128-30).
The ALJ held a third hearing on April 17, 2007. (AR 88-113). On May 4, 2007, after again examining the medical record (which included additional exhibits) and hearing testimony from plaintiff (who was represented by counsel) and medical and vocational experts, the ALJ issued his second decision in which he determined that plaintiff was not disabled prior to July 1, 2006, but became disabled thereafter, and continued to be disabled through the date of the decision. (AR 16-24). Specifically, the ALJ found: (1) plaintiff suffered from the following severe combination of impairments: lumbar and cervical spine disorders, obesity, gallbladder disease, and a history of congestive heart failure (AR 18); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal one of the listed impairments (AR 19); (3) prior to July 1, 2006, plaintiff (i) could lift, carry, push, or pull ten pounds frequently, and twenty pounds occasionally; (ii) could sit frequently (six out of eight hours) with a change in position every thirty minutes; (iii) could stand or walk occasionally (two out of eight hours) frequently with a change in position every thirty minutes; (iv) could stoop, bend, and climb ramps and stairs occasionally; (v) could crouch less than occasionally; (vi) could not kneel, balance or climb ladders or scaffolds; (vii) could not be exposed to hazards such as unprotected heights and dangerous or fast moving machinery; and (viii) could not work in unairconditioned workplaces (AR 19-20); (4) beginning on July 1, 2006, plaintiff also would be expected to be off task mentally five percent of the time beyond regularly scheduled breaks due to impaired concentration; (5) prior to July 1, 2006, plaintiff could perform her past relevant work, but could not do so beginning on July 1, 2006 (AR 22); (6) beginning on July 1, 2006, there were not a significant number of jobs in the national economy that plaintiff could perform (AR 23); (7) plaintiff's statements concerning the intensity, persistence and limiting effects of her symptoms were not entirely credible prior to July 1, 2006, but her allegations regarding her symptoms and limitations beginning on July 1, 2006, were generally credible. (AR 21, 22).
The Appeals Council denied plaintiff's application for review. (AR 7-9).
III. APPLICABLE LEGAL STANDARDS
A. Sequential Evaluation Process
To qualify for disability benefits, a claimant must show that she is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.
(2) Is the claimant's alleged impairment sufficiently severe to limit her ability to work? If not, the claimant is not disabled. If so, proceed to step three.
(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.
(4) Does the claimant possess the residual functional capacity to perform her past relevant work?*fn2 If so, the claimant is not disabled. If not, proceed to step five.
(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.
Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).
Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). 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) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. ...