Malak

dissenting:

On appeal, Malak contends that the Commissioner’s decision was not supported by substantial evidence. I would find that the ALJ’s residual functional capacity (“RFC”) determination was not based on substantial evidence where the ALJ relied almost exclusively on Dr. Mills’ testimony, which was contradictory. I, therefore, respectfully dissent.

At the 2000 and 2003 hearings, Dr. Mills was asked to give his opinion as to Malak’s medical condition in 1988, taking into account all the subsequent medical evidence on record. In 2000, Dr. Mills testified that from 1988 through early 1995, Malak had the RFC to lift and carry up to 25 pounds occasionally and 10-15 pounds frequently, to stand and walk for four hours out of an eight-hour day, to sit for six hours out of an eight-hour day, and to occasionally stoop or kneel. (A.R. 686, 699-701, S.E.R. 33, 46^8.)

At the January 2003 hearing, however, Dr. Mills testified that Malak “almost certainly” equaled listing 4.04C from June 17, 1988 through his bypass surgery in June 1995. The ALJ rejected this opinion, stating that it improperly credited Malak’s testimony of his symptoms. However, the ALJ’s assertion that Dr. Mills was…

MEMORANDUM ***

The Appellant, Fred Malak, seeks reversal of the district court’s order affirming the Commissioner’s denial of social security disability benefits. Malak argues that the findings of the administrative law judge (“ALJ”) were not supported by substantial evidence. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

We review de novo the district court’s affirmance of the Commissioner’s decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.2007). The decision of the Commissioner will be affirmed if free of legal error and supported by substantial evidence. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.1996). Substantial evidence is “more than a mere scintilla, but less than a preponderance”; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Robbins v. Social Sec. Admin., 466 F.3d 880, 882 (9th Cir.2006). Where the evidence can reasonably support either affirming or reversing the decision, the judgment of the reviewing court may not be substituted for that of the Commissioner. Parra, 481 F.3d at 746 .

Malak claims that he was disabled due to a heart condition prior to December 31, 1988 (the last date when…