The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge
This matter is before the court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. §405(g), which authorizes the court to enter judgment upon the pleadings and transcript of the record before the Commissioner. Plaintiff and Defendant have filed their respective pleadings, Defendant has filed the certified transcript of the record, and the parties have filed a Joint Stipulation. After reviewing the matter, the court concludes that the decision of the Commissioner should be affirmed.
I. BACKGROUND PROCEEDINGS
Plaintiff Michael Toto filed a timely request for a hearing on April 5, 2005 after his concurrent application for Social Security disability benefits under Title II and Supplemental Security Income disability benefits ("SSI") under Title XVI benefits was denied in October, 2004. (Administrative Record 46-51). Plaintiff alleged an inability to work as of October 4, 2004 due to pain in his back, shoulder and foot, diabetes and mental problems. (AR 46). Plaintiff appealed the decision of the Commissioner and a hearing was held on October 24, 2006, before an Administrative Law Judge ("ALJ"). (AR 248-73). The ALJ denied Plaintiff both Title II and Title XVI benefits on January 24, 2007 on the grounds that his drug and alcohol abuse were a contributing factor material to the finding of disability and thus Plaintiff was not disabled. (AR 28-36). Plaintiff's request for review was subsequently denied by the Appeals Council. (AR 4). Plaintiff appealed to the district court pursuant to 42 U.S.C. §§ 405 (g) and 1383(c)(3).
The sole issue in this case is whether the ALJ, on the basis of the evidence and testimony, properly evaluated Plaintiff's use of alcohol and drugs as required by the rules concerning whether Plaintiff would be capable of performing past relevant work when not using drugs and alcohol.
Under 42 U.S.C. § 405(g)(1998), 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 proper legal standards. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla", Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1428, 28 L.Ed.2d 842 (1971), but "less than a preponderance." Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988).
This court cannot disturb the Commissioner's findings if those findings are supported by substantial evidence, even though other evidence may exist which supports plaintiff's claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, Torske v. Weinberger, 417 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (U.S. Or. Jun. 03, 1974) (NO. 73-6307); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971). The court is required to uphold the decision of the Commissioner where evidence is susceptible to more than one rational interpretation. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).
1. The ALJ Correctly Found Plaintiff Disabled under the Five-Step Disability Inquiry
In order to be eligible for Title II disability benefits, claimant must establish that the onset of disability occurred prior to the expiration of insured status under the Act. Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Here, since counsel conceded at the hearing that Plaintiff's date last insured on June 30, 2004 was before his alleged onset date of October 4, 2004 (AR 253); Plaintiff is not eligible for Title II benefits and is eligible only for SSI or Title XVI benefits. (AR 29, 253).
A claimant is disabled under Title XVI of the Social Security Act if he is unable to 'engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or . can be expected to last for a continuous period of not less than 12 months.' Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (citing 42 U.S.C. § 423(d)(1)(A)). To determine whether a claimant meets this definition, the ALJ conducts a five-step sequential evaluation that asks (1) whether the claimant is presently employed in substantially gainful activity; (2) whether the claimant suffers from a severe impairment; (3) whether the impairment or combination of impairments 'meet or equal' one of the listed impairments described in Appendix 1 of the regulations; (4) whether the claimant is able to perform any past relevant work; (5) whether the claimant is capable of performing other kinds of work. Id. (citing 20 C.F.R. § 404.1520(a)(4)). The claimant bears the burden of showing steps one through four, while the Commissioner bears the burden in step five. Id.
In this case, the ALJ first examined Plaintiff's disability status by assessing his physical and mental problems and his drug and alcohol abuse. In step one, the ALJ concluded that although Plaintiff currently plays guitar on Venice Beach for tips, this did not amount to substantially gainful employment. (AR 29). Second, the ALJ determined that Plaintiff suffered from severe impairments with regard to his right shoulder, left foot, back conditions and diabetes. Id. The ALJ further determined that Plaintiff suffered from severe alcohol and drug dependence, but his mental impairments were not found to be severe. Id. Third, the ALJ found that none of these impairments met or equaled any listed impairment including musculoskeletal disorders, alcohol and drug dependence, or residuals from diabetes. Id. Fourth, the ALJ determined that because of his severe alcohol and drug dependence, Plaintiff suffered from problems of impulse control, low energy, and sustained concentration which would make him unable to perform past relevant work. (AR 30). In concluding that there was a link between Plaintiff"s inability to work and drug use, the ALJ pointed to a November 2004 note around the onset date in which Plaintiff admitted to using cocaine and alcohol daily and a VA ...