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Anthony Dimaggio v. Michael J. Astrue

June 28, 2011

ANTHONY DIMAGGIO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Frederick F. Mumm United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

Plaintiff brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration denying his application for a period of disability and Disability Insurance benefits. On October 12, 2010 and October 20, 2011, plaintiff and defendant, respectively, consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Pursuant to the Case Management Order entered on September 27, 2010, on May 26, 2011, the parties filed a Joint Stipulation detailing each party's arguments and authorities. The Court has reviewed the administrative record (the "AR"), filed by defendant on March 23, 2011, and the Joint Stipulation. For the reasons stated below, the decision of the Commissioner is reversed and the matter is remanded for further proceedings.

PROCEDURAL HISTORY

On December 3, 2003, plaintiff filed an application for a period of disability and Disability Insurance benefits. Plaintiff's application was denied initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law judge ("ALJ"). ALJ Mason D. Harrell, Jr. held a hearing on April 12, 2005. Plaintiff appeared with counsel and testified at the hearing.

On September 16, 2005, the ALJ issued a decision denying benefits. Plaintiff sought review of the decision before the Social Security Administration Appeals Council and filed a second application for benefits. On August 24, 2006, the Appeals Council denied plaintiff's request for review. Plaintiff filed an action in this Court; the Court vacated the case and remanded it to defendant on November 30, 2009. The second application was associated with the original application on remand.

On May 18, 2010, the ALJ held an additional hearing. Plaintiff appeared with counsel and testified at the hearing. On July 6, 2010, ALJ Harrell issued a decision denying benefits.

Plaintiff filed his complaint herein on September 23, 2010.

CONTENTIONS

Plaintiff raises three issues in this action:

1. Whether there is an inconsistency between the Dictionary of Occupational Titles (the "DOT") descriptions of Electronics Worker and Cashier II and the residual functional capacity found by the ALJ; and

2. Whether the ALJ properly considered if plaintiff meets or equals listing 1.02A.

STANDARD OF REVIEW

Under 42 U.S.C. ยง 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. This Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). However, even if substantial evidence exists ...


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