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MARJORIE ALLENDE-SCOTT v. MICHAEL J. ASTRUE

November 27, 2010

MARJORIE ALLENDE-SCOTT,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge

DECISION AND ORDER

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.

I. BACKGROUND

Plaintiff Marjorie Allende-Scott was born on October 28, 1969, and was thirty-nine years old at the time of her administrative hearing. [Administrative Record ("AR") 36, 39.] She has a twelfth grade education and past relevant work experience as a real estate agent, payroll clerk, and accounting clerk. [AR 71, 73.] Plaintiff alleges disability on the basis of interstitial cystitis, hypertension, back pain, headaches, status post gunshot wound, and obesity. [AR 52, 54-56.]

II. PROCEEDINGS IN THIS COURT

Plaintiff's complaint was lodged on December 23, 2009, and filed on January 4, 2010. On August 4, 2010, Defendant filed an answer and Plaintiff's Administrative Record ("AR"). On November 8, 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.

III. PRIOR ADMINISTRATIVE PROCEEDINGS

Plaintiff applied for a period of disability and disability insurance benefits ("DIB") on May 22, 2007, alleging disability since December 31, 2004. [AR 9.] Plaintiff was last insured for DIB on December 31, 2006. [AR 29.] After the application was denied initially and on reconsideration, Plaintiff requested an administrative hearing, which was held on May 11, 2009, before an Administrative Law Judge ("ALJ"). [AR 36.] Plaintiff appeared with counsel, and testimony was taken from Plaintiff, her husband Michael Scott, and vocational expert Alan E. Cummings. [AR 37.] The ALJ denied benefits in a decision dated August 6, 2009. [AR 6-33.] When the Appeals Council denied review on October 21, 2009, the ALJ's decision became the Commissioner's final decision. [AR 1.]

IV. STANDARD OF REVIEW

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.

V. DISCUSSION

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, ...


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