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Cowan v. Astrue

July 14, 2009

ROGER COWAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Alicia G. Rosenberg United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Roger Cowan filed this action on May 8, 2008. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on May 20 and September 5, 2008. (Dkt. Nos. 8, 9.) On March 27, 2009, the parties filed a Joint Stipulation ("J.S.") that addressed the disputed issues. The Court has taken the matter under submission without oral argument.

Having reviewed the entire file, the Court remands this matter to the Commissioner for proceedings consistent with this opinion.

I. PROCEDURAL BACKGROUND

On April 13, 2005, Cowan filed an application for Supplemental Security Income benefits. A.R. 16. On May 3, 2005, Cowan filed an application for disability insurance benefits. Id. Both applications alleged a disability onset date of February 1, 2003. Id. The applications were denied initially and upon reconsideration. Id. An Administrative Law Judge ("ALJ") conducted a hearing on January 3, 2007, at which Cowan and a vocational expert testified. A.R. 41-70. On February 23, 2007, the ALJ issued a partially favorable decision. A.R. 16-27. On February 20, 2008, the Appeals Council ("AC") granted Cowan's request for review in which it indicated it planned to issue an unfavorable decision. A.R. 194-197. The AC stated that it would wait for 30 days in case Cowan wished to submit additional evidence or argument. A.R. 196. Cowan did not submit any "comments or additional evidence." A.R. 7. On March 28, 2008, the AC issued the final (unfavorable) decision of the Commissioner. A.R. 4-11.

This lawsuit followed.

II. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court reviews 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).

"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. In 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. When the evidence is susceptible to more than one rational interpretation, the Court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.

III. DISCUSSION

A. 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).

B. The AC's Findings

At Step Two of the sequential analysis, the AC found that Cowan had no severe ...


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