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Anthony Lucero v. Michael J. Astrue

May 4, 2012

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



The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge

MEMORANDUM OPINION AND ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS

PROCEEDINGS

On September 9, 2011, Anthony Lucero ("Plaintiff or Claimant") filed a complaint seeking review of the decision by the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for Social Security Disability Insurance benefits. The Commissioner filed an Answer on December 22, 2011. On March 7, 2012, the parties filed a Joint Stipulation ("JS"). The matter is now ready for decision.

Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record ("AR"), the Court concludes that the Commissioner's decision should be reversed and remanded for further proceedings in accordance with this Memorandum Opinion and Order and with law.

BACKGROUND

Plaintiff is a 42 year old male who applied for Social Security Disability Insurance benefits on December 27, 2007, alleging disability beginning September 2, 2004. (AR 19.) Plaintiff has not engaged in substantial gainful activity during the period from his alleged onset date of September 2, 2004, through his date last insured of December 31, 2009. (AR 21.)

Plaintiff's claim was denied initially on March 13, 2008. (AR 19.) Plaintiff filed a timely request for hearing on May 7, 2008. Plaintiff appeared and testified at hearings held before Administrative Law Judge ("ALJ") David G. Marcus on September 1, 2009, and April 15, 2010, in Downey, California. (AR 19.) Claimant was represented by counsel at both hearings. (AR 19.) Vocational expert ("VE") Stephen Berry testified at both hearings and medical expert Dr. Miriam Sherman appeared and testified at the April 15, 2010, hearing. (AR 19.) The ALJ issued an unfavorable decision on May 7, 2010. (AR 19-27.) The Appeals Council denied review on July 7, 2011. (AR 1-6.)

DISPUTED ISSUES

As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as grounds for reversal and remand:

1. Whether the ALJ erred in his analysis of the medical evidence.

2. Whether the Appeals Council erred in failing to consider new and material evidence.

3. Whether the ALJ erred in his evaluation of Plaintiff's credibility and subjective symptoms.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and free of legal error. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991) (ALJ's disability determination must be supported by substantial evidence and based on the proper legal standards).

Substantial evidence means "'more than a mere scintilla,' but less than a preponderance." Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (internal quotation marks and citation omitted).

This Court must review the record as a whole and consider adverse as well as supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where evidence is susceptible to more than one rational interpretation, the ALJ's decision must be upheld. Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). "However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Robbins, 466 ...


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