The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge
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.
Plaintiff Dominic Debello was born on October 9, 1959, and was forty-seven years old on the date he last met the insured status requirements of the Social Security Act. [Administrative Record ("AR") 7, 117.] Plaintiff has a high school education and past relevant work experience as a plumber, heating and air conditioning. [AR 14.] Plaintiff alleges disability on the basis of herniated and bulging discs in his lower back. [AR 52.]
II. PROCEEDINGS IN THIS COURT
Plaintiff's complaint was lodged on February 27, 2009, and filed on March 6, 2009. On August 7, 2009, Defendant filed an Answer and Plaintiff's Administrative Record ("AR"). On October 20, 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. This matter has been taken under submission without oral argument.
III. PRIOR ADMINISTRATIVE PROCEEDINGS
Plaintiff applied for a period of disability and disability insurance benefits ("DIB") on October 31, 2006, alleging disability since May 31, 2004. [AR 7.] Plaintiff's date last insured for DIB eligibility is September 30, 2007. [Id.] After the application was denied initially and on reconsideration, Plaintiff requested an administrative hearing, which was held on August 15, 2008, before Administrative Law Judge ("ALJ") Lowell Fortune. [AR 21.] Plaintiff appeared with counsel, and testimony was taken from Plaintiff, medical expert Samuel Landau, and vocational expert Sandra Fioretti. [AR 22.] The ALJ denied benefits in a decision issued on September 16, 2008. [AR 7-16.] When the Appeals Council denied review on February 4, 2009, the ALJ's decision became the Commissioner's final decision. [AR 1-3.]
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 FIVE-STEP EVALUATION
To be eligible for disability benefits a claimant must demonstrate a medically determinable impairment which prevents the claimant from engaging in substantial gainful activity and which is expected to result in death or to last for a continuous period of at least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A).
Disability claims are evaluated using a five-step test:
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. ...