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Nicholas D. Vanantwerp v. Michael J. Astrue

November 16, 2012

NICHOLAS D. VANANTWERP, 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 THE COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR FURTHER PROCEEDINGS PROCEEDINGS

On March 23, 2012, Nicholas D. Vanantwerp ("Plaintiff" or "Claimant") filed a complaint seeking review of the decision by the Commissioner of Social Security ("Commissioner") denying Plaintiff's applications for Social Security Disability Insurance benefits and Supplemental Security Income benefits. On April 27, 2012, Plaintiff filed a First Amended Complaint. The Commissioner filed an Answer to the First Amended Complaint on July 11, 2012. On October 9, 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 must be reversed and this case remanded for further proceedings in accordance with this Memorandum Opinion and Order and with law.

BACKGROUND

Plaintiff is a 45 year old male who applied for Social Security Disability Insurance benefits and Supplemental Security Income benefits on January 8, 2008, alleging disability beginning January 30, 2007. (AR 37.) Plaintiff has not engaged in substantial gainful activity since January 30, 2007, the alleged onset date. (AR 39-40.)

Plaintiff's claims were denied initially on January 3, 2008 and on reconsideration on September 29, 2008. (AR 37.) Plaintiff filed a timely request for hearing, which was held before Administrative Law Judge ("ALJ") Elizabeth R. Lishner on November 4, 2009, in West Los Angeles, California. (AR 37) Claimant appeared at the hearing and testified. (AR 37.) Plaintiff was represented by counsel. (AR 37.) Vocational expert ("VE") Edward L. Bennett also appeared telephonically and testified at the hearing. (AR 37.)

The ALJ issued an unfavorable decision on November 18, 2009. (AR 37-52.) The Appeals Council denied review on November 23, 2011. (AR 7-12.)

DISPUTED ISSUES

As reflected in the Joint Stipulation, Plaintiff raises only one disputed issue as a ground for reversal and remand:

1. Whether the ALJ carried the Commissioner's burden at step 5 of the sequential analysis.

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 F.3d at 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

THE SEQUENTIAL EVALUATION

The Social Security Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or . . . can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. ยงยง 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has established a five-step ...


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