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Linda Joyce Perez v. Michael J. Astrue

July 20, 2011

LINDA JOYCE PEREZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, 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 Linda Perez was born on August 24, 1954, and was fifty-four years old at the time of her administrative hearing. [Administrative Record ("AR") 44, 27-43.] Plaintiff alleges disability due to migraine headaches, depression rheumatoid arthritis, neck pain, fibromyalgia, lumbar and cervical radicilitis, cervical spine degenerative disc disease, sleeping problems, fatigue, and numbness in her left leg. [AR 47, 85, 115.] She has past relevant work as a teacher's aide. [AR 86.]

II. PROCEEDINGS IN THIS COURT

Plaintiff filed a complaint on September 2, 2010. On March 10, 2011, Defendant filed an answer and Plaintiff's Administrative Record ("AR"). On June 15, 2011, the parties filed their Joint Stipulation ("JS") identifying matters not in dispute, issues in dispute, 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 filed for a period of disability and disability insurance benefits ("DIB") on February 13, 2007, alleging disability since December 15, 2006. [AR 44, 85.] After Plaintiff's application was initially denied on September 19, 2007, she requested an administrative hearing, which was held before an Administrative Law Judge ("ALJ") on May 11, 2009.*fn1 [AR 27-43, 47-52, 55.] Plaintiff appeared with counsel, and testimony was taken from Plaintiff and vocational expert Gregory Jones. [AR 27-43.] The ALJ issued a decision denying benefits on August 21, 2009. [AR 11-22.] On September 18, 2009, Plaintiff sought review with the Appeals Council and submitted additional evidence. [AR 5-7.] When the Appeals Council denied review on July 30, 2010, the ALJ's decision became the Commissioner's final decision. [AR 1-4.]

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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