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Leo Tate, Jr v. Michael J. Astrue

June 6, 2011

LEO TATE, JR.,
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 denial of supplemental security income ("SSI") benefits. The court finds this matter should be reversed and remanded for further administrative proceedings consistent with this decision and order.

I. BACKGROUND

Plaintiff Leo Tate, Jr. was born on October 25, 1965, and was 42-years old at the time of his administrative hearing. [Administrative Record ("AR") 118.] He has a high school education and no past relevant work. [AR 160.]

Plaintiff alleges disability on the basis of chronic pancreatitis, gall bladder stones, a dislocated shoulder/right shoulder injury, and two hernias. [AR 119, 155.]

II. PROCEEDINGS

On June 5, 2008, plaintiff protectively filed an application for SSI, alleging disability since his application date. [AR 118-39.] His claim was denied initially and upon reconsideration.

Plaintiff requested a hearing and, on April 1, 2010, represented by an attorney, appeared and testified before Administrative Law Judge ("ALJ") Wendy Weber. [AR 23-46.] The ALJ also took testimony from medical expert ("ME") Sammy Nafoozy, M.D., [AR 39-43], and vocational expert ("VE") Alan Barozkin. [AR 43-46.] She subsequently issued a written hearing decision finding plaintiff not to be disabled under the social security act (the "Act"). [See AR 9-17.] When the Appeals Council denied review, this became the Commissioner's final decision.

Plaintiff lodged the complaint in this matter on September 10, 2010; it was filed on September 14, 2010. On March 18, 2011, defendant filed an answer and the certified administrative record. On May 23, 2011, the parties filed a Joint Stipulation ("JS"). This matter has been taken under submission without oral argument.

III. 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 reasonably supports 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.

IV. DISCUSSION

A. THE FIVE-STEP ...


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