PHILIP L. ROBINSON, Plaintiff,
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
DOUGLAS F. McCORMICK, Magistrate Judge.
Plaintiff Philip Robinson ("Plaintiff") seeks judicial review of the Commissioner's final decision denying his application for disability insurance benefits. For the reasons stated below, the Commissioner's decision is reversed and the matter is remanded for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed his application for disability insurance benefits on July 20, 2010, alleging disability beginning September 1, 2007. In an unfavorable decision, the Administrative Law Judge ("ALJ") concluded that Plaintiff was not disabled because he could perform work that exists in significant numbers in the national economy. Administrative Record ("AR") 27-38.
The parties dispute whether the ALJ erred in failing to properly consider the September 2, 2011 report of the United States Department of Veterans Affairs ("VA"), which granted Plaintiff entitlement to individual unemployability. See Plaintiff's Motion for Summary Judgment ("Pltf's MSJ") at 3; Defendant's Cross-Motion for Summary Judgment ("Deft's MSJ") at 3.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free from legal error and are supported by substantial evidence based on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales , 402 U.S. 389, 401 (1971); Parra v. Astrue , 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Richardson , 402 U.S. at 401; Lingenfelter v. Astrue , 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. Lingenfelter , 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin. , 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing 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." Reddick v. Chater , 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can reasonably support either affirming or reversing, " the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-21.
Plaintiff alleges that the ALJ erred in failing to consider the VA's second assessment of Plaintiff, issued on September 2, 2011, which granted Plaintiff entitlement to individual unemployability effective November 29, 2010. Pltf's MSJ at 3-8 (citing AR 118-25). Although the ALJ considered a 2010 VA disability rating which did not find Plaintiff ...