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Ernest Montgomery v. Michael J. Astrue

January 3, 2012

ERNEST MONTGOMERY,
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 Ernest Montgomery was born on March 30, 1953, and was 57-years old at the time of the decision in this matter. [Administrative Record ("AR") 11, 97.] He has a high school education [AR 144] and past relevant work experience as a janitor. [AR 10, 98.]

Plaintiff alleges disability on the basis of a shoulder injury and bone chips. [AR 97.]

II. PROCEEDINGS

Relevant to this matter, Plaintiff applied for supplemental security income ("SSI") benefits on May 5, 2006, alleging disability since June 15, 2005. [AR 33, 97.] After his application was denied initially and upon reconsideration, he requested a hearing. In 2006 he appeared, with a prior attorney, and testified before an Administrative Law Judge ("ALJ"). [AR 140-60.] The ALJ also received the testimony of a vocational expert ("VE"). [AR 160-71.] On October 11, 2007, the ALJ issued an unfavorable decision, finding Plaintiff not to be disabled at step five of the sequential evaluation. [AR 33-40.] When that decision became final, Petitioner appealed to this court in this case number. Because the administrative record was lost at some point after the first hearing decision was issued, the parties stipulated to a remand to reconstruct the record. [AR 73-75.]

On remand, Plaintiff appeared and testified at a second hearing before a different ALJ, represented by his current attorney. [AR 176-97.] The ALJ again received VE testimony. [AR 197-201.] On June 16, 2010, the ALJ issued a written decision finding plaintiff not disabled and denying benefits. [AR 7-11.] When the Appeals' Council denied review, the ALJ's decision became the Commissioner's final decision.

Plaintiff lodged the complaint in this matter on November 23, 2009. On June 23, 2011, Defendant filed an answer and the certified administrative record. On November 9, 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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