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Denise Turk v. Michael J. Astrue

January 3, 2012

DENISE TURK,
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 Commissioner's 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 Denise Turk was born on March 27, 1944, and was sixty-seven years old at the time of her last administrative hearing. [Administrative Record ("AR") 274.] She has a high school education and past relevant work experience as a teacher. [AR 273.] Plaintiff alleges disability due to asthma, back and shoulder pain, joint pain, and mood disorders and depression.

II. PROCEEDINGS IN THIS COURT

On October 19, 2011, 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 PROCEEDINGS

Plaintiff applied for SSI benefits under Title XVI of the Social Security Act in 2005, alleging disability since November 23, 2002. [AR 267.] After initial review and a hearing, her application was denied. [AR 7-13.] When that decision became final, Plaintiff sought review in this court in case number CV07-1450-CW. The matter was ultimately remanded for further administrative proceedings. [See AR 285-93.]

A second hearing was held on April 9, 2009. [AR 672-93.] On July 1, 2009, the Administrative Law Judge ("ALJ") issued a second unfavorable decision. [AR 278-84.] The Appeals Council granted Plaintiff's request for review and again remanded the case to the ALJ. [AR 309-311.] A third hearing was held on May 18, 2010, before a different ALJ. [AR 694-99.] The ALJ held a supplemental (fourth) hearing on July 27, 2010. [AR 700-22.] The ALJ then held another supplemental (fifth) hearing on October 20, 2010. [AR 723-35.] On December 23, 2010, the ALJ issued an unfavorable decision. [AR 264-75.] When the Appeals Council denied review the ALJ's decision became the Commissioner's final decision. These proceedings followed.

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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