The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
DECISION AND ORDER ON PLAINTIFF'S SOCIAL SECURITY COMPLAINT
ORDER DIRECTING THE CLERK TO ENTER JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE AND AGAINST PLAINTIFF MICHAEL ROBLES
In this action, Plaintiff challenges the final decision of the Commissioner of Social Security (Commissioner) denying his February 18, 2000 application for Disability Insurance benefits (DIB). In that application, he claimed to have been disabled since January 10, 1992, due to back pain resulting from injury to a herniated disc. (A.R. 26, 98-102.)*fn1 . The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), and pursuant to the order of Judge Oliver W. Wanger of October 6, 2008, the matter has been assigned to the Magistrate Judge to conduct all further proceedings in this case, including entry of final judgment. It was assigned to the undersigned Magistrate Judge on December 29, 2009.
The decision under review is that of Social Security Administration (SSA) Administrative Law Judge (ALJ) James E. Ross, dated June 22, 2006 (A.R. 25-31). The ALJ's decision was rendered after a hearing held on December 14, 2005, at which Plaintiff and his wife testified. (A.R. 367-88).
Previously another ALJ had issued a decision on Plaintiff's application. It was dated July 24, 2002, and was rendered after a hearing held on June 27, 2002. (A.R. 345-66.) It was vacated by the Appeals Council with instructions for additional evaluation of Plaintiff's subjective complaints and mental impairment as well as development of evidence from a vocational expert ("VE") to clarify the effect of assessed limitations on the occupational base and to resolve any conflict between the VE's occupational evidence and the information in the Dictionary of Occupational Titles and the United States Department of Labor's Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles at 342 (1993). (A.R. 25.)
After the last hearing held by ALJ Ross in December 2005, interrogatories were sent to vocational expert Kenneth Ferra, and his responses were proffered to Plaintiff's counsel. (A.R. 292-323.) The Appeals Council denied Plaintiff's request for review of ALJ Ross's decision on January 14, 2008 (A.R. 16-20), and Plaintiff filed his complaint in this Court on September 2, 2008. Briefing commenced on April 20, 2009, and was completed with the filing of Defendant's cross-motion for summary judgment and opposition to Plaintiff's opening brief on June 22, 2009. The matter has been submitted without oral argument to the Magistrate Judge.
Plaintiff filed his complaint on September 2, 2008, more than sixty days after the mailing of the notice of decision on or about January 14, 2008. However, upon Plaintiff's request, the Appeals Council extended the time within which Plaintiff could file a civil action to thirty days from the date of receipt of the notice of extension dated July 30, 2008. (A.R. 15, 7.) Receipt of the notice of extension of time is deemed to be five days after the date of the notice. 20 C.F.R. § 404.901. Accordingly, Plaintiff's filing of the action in this Court on September 2, 2008, was timely because it was within thirty days of August 5, 2008. 42 U.S.C. § 405(g)
II. Standard and Scope of Review
A. General Legal Standards
Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion; it may not simply isolate a portion of evidence that supports the decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). It is immaterial that the evidence would support a finding contrary to that reached by the Commissioner; the determination of the Commissioner as to a factual matter will stand if supported by substantial evidence because it is the Commissioner's job, and not the Court's, to resolve conflicts in the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975).
In weighing the evidence and making findings, the Commissioner must apply the proper legal standards.Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must review the whole record and uphold the Commissioner's determination that the claimant is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If the Court concludes that the ALJ did not use the proper legal standard, the matter will be remanded to permit application of the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th Cir. 1987).
B. Presumption of Continuing Non-Disability
In the decision being reviewed, the ALJ applied a presumption of continuing non-disability based on a previous ALJ's post-hearing decision, dated May 28, 1998, on a previous application for benefits. Plaintiff did not seek review of that decision, which included a finding that Plaintiff could perform a broad range of light work. (A.R. 25.) The legal effect to be given such a decision is set forth in Chavez v. Bowen, 844 F.2d 691, 693-94 (9th Cir. 1988), in which it is recognized that where a claimant has been found not disabled in a prior decision of an ALJ after a hearing, there is a continuing presumption of non-disability that a claimant must overcome by proving changed circumstances indicating a greater disability. Plaintiff does not challenge the application of Chavez v. Bowen or of the presumption to the application being reviewed in this proceeding.
C. Pertinent Period of Review
Plaintiff's last insured date was December 31, 2000. Thus, Plaintiff was not entitled to a period of disability and DIB unless evidence established that Plaintiff was under a disability on or before December 31, 2000. (A.R. 25-26.) Hence, the relevant period for consideration regarding ...