Fodor

MEMORANDUM ***

Cassandra Fodor appeals pro se from the district court’s judgment and order affirming the decision of the Commissioner of the Social Security Administration (“the Commissioner”). The Commissioner ruled that Fodor and her children were not entitled to survivor’s benefits under the Social Security Act, 42 U.S.C. § 402 (d) and (g). Fodor argues that the district court should have reversed the Commissioner’s decision and reinstated the Administrative Law Judge’s (“ALJ”) decision awarding them benefits because the ALJ evaluated the live testimony and his decision was supported by substantial evidence. Fodor also argues that the Commissioner’s decision was not supported by substantial evidence and that the district court’s order contained various errors and omissions. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm.

Fodor’s husband, Frederick Eschweiler, committed suicide on February 27, 1995. The Social Security Administration (“SSA”) denied Fodor’s application for mother’s benefits for herself and child’s benefits for Wendy and Andrew Siemion *632 (“Wendy and Andrew”), her children from a previous marriage. On reconsideration, the SSA affirmed its…

dissenting.

I respectfully dissent. In this case, the Commissioner’s finding that Fodor and her children were not “living with” Eschweiler at the time of his death is not supported by the evidence. To the contrary, the record illustrates clearly that Eschweiler and Fodor intended to continue “living with” one another.

Although the majority applies the correct substantial evidence standard, I disagree with its application. “Substantial evidence is more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison v. NLRB, 305 U.S. 197, 229 , 59 S.Ct. 206 , 83 L.Ed. 126 (1938); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999).

It is not reasonable to accept the evidence relied upon by the Commissioner in support of his conclusion. The Commissioner relied on five primary pieces of evidence. This reliance was misplaced. None of these five factors indicates that Eschweiler and Fodor did not intend to reunite.

*635 First, the Commissioner relied on the presence of the temporary restraining order (“TRO”) that was issued three days prior to Eschweiler’s death. The TRO was necessary…