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 administrative proceedings consistent with this opinion.
Plaintiff Marina Adea was born on February 29, 1956, and was fifty-three years old at the time of her latest administrative hearing. [Administrative Record ("AR") 16, 310.] She has a high school education and past relevant work experience as a certified nursing aide. [AR 63.] Plaintiff alleges disability on the basis of back and leg problems arising from an October 2004 workplace injury. [AR 64-5, 141.]
II. PROCEEDINGS IN THIS COURT
Plaintiff's complaint was lodged on January 8, 2010, and filed on January 26, 2010. On July 22, 2010, defendant filed an answer and plaintiff's Administrative Record ("AR"). On September 22, 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 October 26, 2005, alleging disability since October 20, 2004. [AR 121.] Plaintiff last met the insured status requirements of the Social Security Act on December 31, 2010. [AR 10.] After the application was denied initially and upon reconsideration, plaintiff requested an administrative hearing, which was held on August 31, 2007, before Administrative Law Judge ("ALJ") Mason D. Harrell, Jr. [AR 59.] Plaintiff appeared with counsel, and testimony was taken from plaintiff and vocational expert ("VE") Sandra Fioretti. [AR 84.] The ALJ denied benefits in an administrative decision filed on October 26, 2007. [AR 18.] When the Appeals Council denied review on January 25, 2008, the ALJ's decision became the Commissioner's final decision. [AR 88-90.]
Plaintiff filed an action in this court, EDCV 08-262 (CW). The matter was remanded for further proceedings pursuant to Sentence Four of 42 U.S.C. §405(g).
A remand hearing was held on July 29, 2009. [AR 310-27.] Plaintiff appeared at the hearing with counsel and again testified. [AR 312-327.] The ALJ also took testimony from impartial medical expert ("ME") Samuel Landau, M.D., and VE David Rinehart. [See id.] On October 8, 2009, the ALJ issued a second unfavorable decision. [AR 5-15.] This action followed.
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, ...