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Mark W. Schoening v. Michael J. Astrue

June 21, 2011

MARK W. SCHOENING,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

I.

INTRODUCTION

Plaintiff Mark W. Schoening ("Plaintiff") brings this action seeking to reverse the decision of the Commissioner of the Social Security Administration (the "Commissioner" or the "Agency") denying his application for Disability Insurance Benefits ("DIB"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Agency is REVERSED and REMANDED for further proceedings.

II.

PROCEDURAL HISTORY

On September 1, 2004, Plaintiff filed an application for Disability Insurance Benefits ("DIB") claiming that he became disabled on June 1, 2002. (Administrative Record ("AR") 162-65). Plaintiff was denied benefits by initial determination on December 22, 2004. (AR 44-49). On February 1, 2005, Plaintiff requested a hearing before an ALJ. (AR 52). The hearing took place on October 21, 2005. (AR 698-711). Plaintiff appeared with counsel and testified. (AR 698). On November 18, 2005, Administrative Law Judge ("ALJ") Jan Donshbach denied benefits. (AR 36-43). At the request of the Plaintiff, the Appeals Council reviewed the unfavorable decision of the ALJ. (AR 62-64). The Appeals Council vacated the November 18, 2005 decision and remanded the claim. (AR 62).

The second hearing took place in Long Beach, California on April 10, 2007 with ALJ Edward C. Graham presiding. (AR 680-697). Plaintiff appeared with counsel and testified. (AR 680). On April 20, 2007, the ALJ issued a decision denying Plaintiff benefits. (AR 712-22). The Plaintiff requested the Appeals Council review the ALJ decision, and upon review, the Appeals Council again remanded Plaintiff's claim for a third hearing. (AR 79-83, 85-87).

On August 4, 2009, the third hearing again took place in Long Beach, California with ALJ Edward C. Graham presiding. (AR 664-79). Plaintiff appeared with counsel and testified. (AR 664). The ALJ issued an unfavorable decision on October 14, 2009. (AR 13-29). Plaintiff requested review by the Appeals Council which was denied on March 4, 2010. (AR 9-12, 6-8). On May 6, 2010, Plaintiff filed the instant action.

III.

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents him from engaging in substantial gainful activity and that is expected to *fn1 result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not ...


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