United States District Court, D. Arizona
CHARLES R. PYLE, District Judge.
Plaintiff has filed the instant action seeking review of the final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). The Magistrate Judge has jurisdiction over this matter pursuant to the parties' consent. See 28 U.S.C. § 636(c). Pending before the Court are Plaintiff's Opening Brief (Doc. 15) ("Plaintiff's Brief"), Defendant's Opposition to Plaintiff's Opening Brief (Doc. 19) ("Defendant's Brief"), and Plaintiff's Reply (Doc. 25). For the following reasons, the Court remands this matter for an immediate award of benefits.
In October 2010, Plaintiff protectively filed applications for disability insurance benefits and supplemental social security income under the Social Security Act. (Administrative Record ("AR.") 11, 169-82, 205). Plaintiff alleges that he has been unable to work since January 15, 2009 due to back problems, arthritis in both ankles, high cholesterol, and osteoporosis. (AR. 205, 224).
Plaintiff was born on December 5, 1955, making him fifty-three years old on his alleged disability onset date of January 15, 2009. (Plaintiff's Brief, p.2). Plaintiff has a high school education and worked for more than 32 years as a loan officer. (AR. 35, 20, 239; see also Defendant's Brief, p. 2). Plaintiff stopped working as a loan officer in March, 2008. (AR. 54). In August 2008, Plaintiff began working part-time at his son's restaurant. (AR. 225). "Plaintiff wanted his son's restaurant to be a success, so he helped him as much as he could and at the same time was able to earn a little bit of money while being in an environment that would accommodate his physical limitations." (Plaintiff's Brief, p. 2 (citing AR. 55)).
After Plaintiff's applications were denied initially and on reconsideration, Plaintiff, who was represented by counsel, appeared for a hearing before an Administrative Law Judge ("ALJ"), where Plaintiff and vocational expert ("VE") Ruth Van Vleet, testified. (AR. 31-65; see also Plaintiff's Brief, p. 1; Defendant's Brief, p. 2). On August 24, 2012, the ALJ issued her decision finding Plaintiff was not disabled under the Social Security Act. (AR. 11-21). Thereafter, the Appeals Council denied Plaintiff's request for review, thus rendering the ALJ's August 2012 Decision the final decision of the Commissioner. (AR. 1-7, 28-30).
Plaintiff then initiated the instant action, raising the following grounds for relief: (1) the ALJ's decision that Plaintiff could perform his past relevant work as a loan officer was improper; (2) the ALJ erred in her assessment of Plaintiff's treating provider's opinion; (3) the ALJ failed to provide a proper basis for finding lay statements were not credible; and (4) the ALJ's credibility finding was not based on substantial evidence. Plaintiff also submitted new evidence in the form of a November 2012 post-operative report for back surgery. (Plaintiff's Brief, Exh. 1).
The Court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. §405(g). The factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may "set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted).
Substantial evidence is "more than a mere scintilla[, ] but not necessarily a preponderance.'" Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see also Tackett, 180 F.3d at 1098. Further, substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where "the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Tackett, 180 F.3d at 1098 ( citing Matney v. Sullivan, 981 F.2d 1016, 1019 (99th Cir. 1992)). Moreover, the Commissioner, not the court, is charged with the duty to weigh the evidence, resolve material conflicts in the evidence and determine the case accordingly. Matney, 981 F.2d at 1019. However, the Commissioner's decision "cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Tackett, 180 F.3d at 1098 ( quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir.1998)). Rather, the Court must "consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Id. ( quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).
SSA regulations require the ALJ to evaluate disability claims pursuant to a five-step sequential process. 20 C.F.R. §§404.1520, 416.920. To establish disability, the claimant must show he has not worked since the alleged disability onset date, he has a severe impairment, and his impairment meets or equals a listed impairment or his residual functional capacity ("RFC") precludes him from performing past work. Where the claimant meets his burden, the Commissioner must show that the claimant is able to perform other work, which requires consideration of the claimant's RFC to perform other substantial gainful work in the national economy in view of claimant's age, education, and work experience.
THE ALJ'S FINDINGS IN PERTINENT PART
The ALJ found that although Plaintiff worked part-time at his son's restaurant after leaving his position as a loan manager, his earnings at the restaurant did not meet the criteria for substantial gainful activity. (AR. 13). "As this is a family business and the claimant testified that he spent all day there on many days, there is no way to verify how many hours the claimant works. Therefore, ...