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Marcus v. Astrue

October 26, 2010


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 judgment should be entered in favor of Defendant, affirming the Commissioner's decision.


Plaintiff Brenda Marcus was born on October 7, 1960, and was forty-eight years old at the time of her latest administrative hearing. [Administrative Record ("AR") 256, 326.] She has a high school education and past relevant work experience as an office manager, paper salesperson and purchasing manager. [AR 57, 257.] Plaintiff alleges disability on the basis of a seizure disorder, depression, anxiety, and pain in her neck, back, hip and leg. [AR 258, 262.]


Plaintiff applied for supplemental security income ("SSI") on July 6, 2004, alleging disability since June 11, 2003. [AR 11.] After the application was denied initially and upon reconsideration, Plaintiff requested an administrative hearing, which was held on November 15, 2006, before Administrative Law Judge ("ALJ") F. Keith Varni. [AR 253.] Plaintiff appeared with counsel and testified. [AR 254.] The ALJ denied benefits in a decision filed on December 18, 2006. [AR 8.] When the Appeals Council denied review on March 24, 2007, the ALJ's decision became the Commissioner's final decision. [AR 3.]

Plaintiff filed a complaint in the district court on June 6, 2007 (Case No. EDCV 07-597 CW). On March 10, 2008, the court issued a decision and order remanding the matter for further administrative proceedings.

A second administrative hearing was held on January 6, 2009, before the same ALJ. [AR 324.] Plaintiff's counsel appeared without Plaintiff, and testimony was taken from vocational expert Joseph Mooney. [AR 326.] The ALJ denied benefits in a decision dated March 4, 2009. [AR 275.]

The present complaint was lodged on July 7, 2009, and filed on July 15, 2009. On January 13, 2010, Defendant filed an Answer and Plaintiff's Administrative Record ("AR"). On March 15, 2010, 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.


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.



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. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding ...

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