The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge
AMENDED DECISION AND ORDER*fn1
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.
This action was brought on behalf of Plaintiff K.J.B., who was born on February 28, 2000. [AR 13.] Plaintiff alleges disability on the basis of asthma, obstructive sleep apnea syndrome, hearing problems, allergies and concentration problems. [AR 104.]
II. PROCEEDINGS IN THIS COURT
Plaintiff's complaint was lodged on October 29, 2008, and filed on November 7, 2008. On April 7, 2009, Defendant filed an answer and Plaintiff's Administrative Record ("AR"). On August 10, 2009, 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. On August 18, 2009, the Joint Stipulation was withdrawn, and a second Joint Stipulation was filed that was identical to the initial Joint Stipulation except with redactions of Plaintiff's name. This matter has been taken under submission without oral argument.
III. PRIOR ADMINISTRATIVE PROCEEDINGS
Plaintiff applied for supplemental security income ("SSI") under Title XVI of the Social Security Act on October 7, 2005, alleging disability since February 18, 2003. [AR 10, 82.] After the application was denied initially and on reconsideration, Plaintiff requested an administrative hearing, which was held on November 15, 2007, before Administrative Law Judge ("ALJ") Lowell Fortune. [AR 31.] The hearing was continued to obtain additional medical records. [AR 49.] A supplemental hearing was held on January 11, 2008, before ALJ Fortune. [AR 51.] Plaintiff appeared with counsel, and testimony was taking from Plaintiff's mother and medical expert Colin Hubbard. [AR 52.] The ALJ denied benefits in a decision dated May 23, 2008. [AR 10-20.] When the Appeals Council denied review on August 29, 2008, the ALJ's decision became the Commissioner's final decision. [AR 2.]
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 THREE-STEP EVALUATION FOR CHILDREN'S DISABILITY
A claimant under the age of eighteen years shall be considered disabled if he or she has a medically determinable impairment which results in marked and severe functional limitations, and 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. Merril ex rel. Merril ...