Whipple v. Colvin

Filing 25

ORDER re 1 Complaint filed by David L. Whipple by Judge J Richard Creatura. The Court ORDERS that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this order. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DAVID L. WHIPPLE,

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Plaintiff,

CASE NO. 13-cv-06079 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and

18 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
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Magistrate Judge and Consent Form, Dkt. 3; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 4). This matter has been fully briefed (see Dkt. 14, 23, 24).

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After considering and reviewing the record, the Court concludes that although
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both parties agree that the ALJ erred, and although plaintiff has established that two of
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the three aspects of the “credit-as-true” test are met, plaintiff has not established that the
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 ALJ would be required to find plaintiff disabled if the improperly discredited evidence
2 from Ms. Lang was credited as true.
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Therefore, this matter is reversed and remanded for further administrative
proceedings.

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BACKGROUND

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Plaintiff, DAVID L. WHIPPLE, was born in 1955 and was 55 years old on the
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amended alleged date of disability onset of April 8, 2010 (see AR. 26, 116-19, 120-23).
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Plaintiff has a high school education (AR. 32). Plaintiff has work experience in a door
company and as a school custodian (AR. 33-41).
According to the ALJ, plaintiff has at least the severe impairments of “left

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12 shoulder strain status post acromioplasty and lumbar strain with degenerative changes (20
13 CFR 404.1520(c))” (AR. 15).
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At the time of the hearing, plaintiff was living in a home with his wife (AR. 31-

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PROCEDURAL HISTORY
Plaintiff’s application for disability insurance (“DIB”) benefits pursuant to 42
U.S.C. § 423 (Title II) of the Social Security Act was denied initially and following

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reconsideration (see AR. 59-61, 64-68). Plaintiff’s requested hearing was held before
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Administrative Law Judge Mattie Harvin-Woode (“the ALJ”) on April 19, 2012 (see AR.
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24-56). On June 18, 2012, the ALJ issued a written decision in which the ALJ concluded
that plaintiff was not disabled pursuant to the Social Security Act (see AR. 9-23). While

24 this civil action was pending before this Court, plaintiff filed a new application for DIB

ORDER ON PLAINTIFF’S COMPLAINT - 2

1 benefits, and was found disabled as of the day after the date of the ALJ decision subject
2 to the appeal herein (see Response Brief, Dkt. 23, p. 3).
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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or
not the ALJ properly evaluated the medical evidence; (2) Whether or not the ALJ
properly evaluated plaintiff’s testimony; (3) Whether or not the ALJ properly assessed

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plaintiff’s residual functional capacity; (4) Whether or not the ALJ erred by basing her
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step four finding on a residual functional capacity assessment that did not include all of
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plaintiff’s limitations, and by failing to find that plaintiff’s past work as a bead cutter was
a composite job; (5) Whether or not the ALJ erred by failing to find that plaintiff was

11 disabled under the framework of Medical-Vocational Rule 202.06; (6) Whether or not
12 new evidence submitted to the Appeals Council supports reversal of the ALJ’s decision;
13 and (7) Whether or not this Court should exercise its discretion and award benefits to
14 plaintiff (see Dkt. 14, pp. 1-2).
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The defendant agrees with plaintiff that the ALJ erred in evaluating plaintiff’s

16 application and that the matter should be remanded, however defendant disagrees with
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plaintiff’s requested remedy of reversal for payment of benefits (see Dkt. 23, p. 1).

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STANDARD OF REVIEW

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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's
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denial of social security benefits if the ALJ's findings are based on legal error or not
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supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.

24 1999)).

ORDER ON PLAINTIFF’S COMPLAINT - 3

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DISCUSSION
Whether the case should be remanded for further administrative proceedings
or reversed for payment of benefits.
The parties agree that the ALJ erred in her evaluation of the opinion of Ms. Lisa
Lang, PT (see Dkt. 23, p. 4). However, the parties disagree as to whether this matter

6 should be reversed and remanded for further proceedings or for an award of benefits.
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Ms. Lang opined that plaintiff suffered from various workplace limitations, noted

8 by defendant as follows:
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never to seldom reach overhead with the left;
seldom to occasionally reach overhead with the right;
seldom reach with the left shoulder;
occasionally to frequently reach below the waist and at waist level with
the left;
frequently reach below the waist and at waist level with the right;
occasionally perform fine manipulation with the left;
frequently perform fine manipulation with the right;
seldom forcefully grasp with the left;
occasionally forcefully grasp with the right; and
frequently handle/grasp bilaterally

16 (Id. (citing AR. 199)). As noted by plaintiff, Ms. Lang also opined that plaintiff was
17 limited to no frequent lifting, as well as other limitations opined by Ms. Lang that were
18 not accommodated into plaintiff’s residual functional capacity (“RFC”) (see AR. 199; see
19 also AR. 15).
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Plaintiff contends that further development of the record is unnecessary and
therefore that the plaintiff should be found disabled and this matter should be remanded
with a direction to award benefits. Defendant contends that further development of the

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ORDER ON PLAINTIFF’S COMPLAINT - 4

1 record is necessary because the “ALJ’s decision lacks sufficient specificity in discussing
2 which portions of Ms. Lang’s opinion were credited” (id.).
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Generally, when the Social Security Administration does not determine a
claimant’s application properly, “‘the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or explanation.’” Benecke v. Barnhart,

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379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, the Ninth Circuit has put
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forth a “test for determining when [improperly rejected] evidence should be credited and
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an immediate award of benefits directed.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th
Cir. 2000) (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)).
At the first step, the Court should determine if “the ALJ has failed to provide

12 legally sufficient reasons for rejecting [the particular] evidence.” Garrison v. Colvin, 759
13 F.3d 995, 1020 (9th Cir. 2014) (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1202
14 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007); Orn v.
15 Astrue, 495 F.3d 625, 640 (9th Cir. 2007); Benecke, supra, 379 F.3d at 595; Smolen,
16 supra, 80 F.3d at 1292)); see also Treichler v. Comm’r of Soc. Sec. Admin., 2014 U.S.
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App. LEXIS 24463 (9th Cir. December 24, 2014). Next, as stated recently by the Ninth
Circuit:

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Second, we turn to the question whether [or not] further administrative
proceedings would be useful. In evaluating this issue, we consider [if]
the record as a whole is free from conflicts, ambiguities, or gaps, [if] all
factual issues have been resolved, and [if] the claimant’s entitlement to
benefits is clear under the applicable legal rules.
Treichler v. Comm’r of Soc. Sec. Admin., 2014 U.S. App. LEXIS 24463 at *30 (9th Cir.

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ORDER ON PLAINTIFF’S COMPLAINT - 5

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The final step is to determine whether or not “if the improperly discredited

2 evidence [was] credited as true, the ALJ would be required to find the claimant disabled
3 on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (citing Ryan v.
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Comm’r of Soc. Sec., 528 F.3d 1194, 1202 (9th Cir. 2008); Lingenfelter v. Astrue, 504
F.3d 1028, 1041 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007);

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Benecke, supra, 379 F.3d at 595; Smolen, supra, 80 F.3d at 1292)).
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The parties agree that the first step is met, as defendant admits that the ALJ erred
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with respect to the opinion of Ms. Lang (see Dkt. 23, p. 4). The ALJ failed to provide any
rationale for not adopting the entirety of the opinion of Ms. Lang into the RFC (see AR.

11 15, 199). In her written decision, the ALJ discussed Ms. Lang’s opinion and gave it
12 “great weight because she had an opportunity to review the entire record, an opportunity
13 to examine the claimant, and her opinion is consistent with the record as a whole” (see
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Although defendant contends that further development of the record is necessary

16 because the “ALJ’s decision lacks sufficient specificity in discussing which portions of
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Ms. Lang’s opinion were credited,” it is very clear from the ALJ’s decision that she gave
“great weight” to the entirety of Ms. Lang’s opinion (see AR. 19; see also Dkt. 23, p. 4).

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Therefore, the Court is not persuaded by defendant’s argument that further development
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of the record is necessary: Ms. Lang’s opinion is not ambiguous and does not require
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further development. Instead, what is argued by defendant is essentially that the ALJ
should have an opportunity to conclude differently about the identical record,

24 specifically, regarding Ms. Lang’s opinion, after already evaluating it, finding it

ORDER ON PLAINTIFF’S COMPLAINT - 6

1 “consistent with the record as a whole” and providing reasons as to why it should be
2 given great weight (see AR. 19). This is the exact type of situation in which “we need not
3 return the case to the ALJ to make a residual functional capacity determination a second
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time.” See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). As concluded by the
Ninth Circuit, allowing the ALJ “to decide the issue again would create an unfair ‘heads

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we win; tails, let’s play again’ system of disability benefits adjudication.” Id. (citing
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Moisa v. Barnhart, 367 F.3d 882, 886-87 (9th Cir. 2004) (“noting that the
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‘Commissioner, having lost this appeal, should not have another opportunity . . . any
more than Moisa, had he lost, should have an opportunity for remand and further

11 proceedings”)). The opinion of Ms. Lang is clear, the ALJ clearly indicated an intention
12 to adopt it, and the ALJ provided reasons for giving it great weight. Further development
13 of the record regarding the opinion of Ms. Lang would serve no useful purpose, therefore
14 the Court is not convinced by defendant’s argument regarding the need for further
15 development of the record. See Garrison, supra, 759 F.3d at 1020 (footnote and citations
16 omitted).
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However, although the record of Ms. Lang does not require further development,
the RFC must be adjusted to accommodate the opinion of Ms. Lang, and additional

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testimony by a vocational expert most likely is required to determine the effect at step
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four of adopting the limitations opined by Ms. Lang into plaintiff’s RFC. Therefore, as
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discussed further below, discussion of step three of the credit-as-true test reveals that
plaintiff not only has not satisfied step three, but also has not satisfied step two, as he has

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ORDER ON PLAINTIFF’S COMPLAINT - 7

1 not demonstrated that “entitlement to benefits is clear under the applicable legal rules.”
2 Treichler, surpa, 2014 U.S. App. LEXIS 24463 at *30.
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All that remains is the final step in the credit-as-true analysis, whether or not “if
the improperly discredited evidence were credited as true, the ALJ would be required to
find the claimant disabled on remand.” Garrison, supra, 759 F.3d at 1020 (citations

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omitted). Although plaintiff contends that crediting “Ms. Lang’s opinion as true can only
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support a finding that [plaintiff]’s limitation prevent him from performing any past
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relevant work,” this is distinct from concluding that if her opinion is credited in full, the
ALJ would be required to find plaintiff disabled; and, in addition, there is no citation to

11 this conclusory statement by plaintiff, and the argument in support is not well articulated
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For example, plaintiff points out in his Opening Brief that the ALJ failed to

14 include in the RFC Ms. Lang’s opined limitation to occasionally performing fine
15 manipulations with his left arm (see Opening Brief, Dkt. 14, p. 13); however, the job of
16 bead cutter as generally performed requires only occasional fingering (see Selected
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Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles,
U.S. Dept. of Labor, Employment and Training Administration, 1993, p. 222, available at

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http://www.nosscr.org/sco/sco.pdf, last visited 01/12/2015 (“MOLDING CUTTER,”
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DOT No. 663.685-018)), which was verified by the vocational expert (“VE”) (see AR.
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51). Therefore, this argument by plaintiff does not establish that if Ms. Lang’s opinion is
credited-as-true that the ALJ would be required to find plaintiff disabled.

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ORDER ON PLAINTIFF’S COMPLAINT - 8

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Similarly, plaintiff directs the Court’s attention to the fact that the ALJ failed to

2 include in the RFC the various limitations opinion by Ms. Lang regarding reaching, and
3 argues that “the job of bead cutter requires frequent reaching” (id.). However, the VE
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testified that while a limitation to occasional reaching at the waist level would preclude
the job of bead cutter, occasional reaching overhead with the left upper extremity would

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not preclude such work (see AR. 47, 54-55). As the VE testified, the work at the job of
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bead cutter is “going to be closer to waist height . . . . sort of bench work type job”
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(AR. 50). When asked by the ALJ if a bead cutter is working at waist height, the VE
testified in the affirmative (see id.). While Ms. Lang limited plaintiff to never to seldom

11 reaching overhead with the left arm and seldom to occasional overhead reaching with the
12 right arm, she opined that he could reach at the waist level frequently with the right arm,
13 and occasionally to frequently with the left arm (AR. 199). Therefore, again, plaintiff’s
14 argument fails to demonstrate that the job of bead cutter, which appears to require
15 frequent reaching only at waist level according to the testimony of the VE, is precluded
16 by adoption of the opinion of Ms. Lang. However, the Court notes that whether or not
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plaintiff’s reaching limitations as opined by Ms. Lang precludes this work is not clear
based on the record. There is no testimony regarding the effect of her opined reaching

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limitations at shoulder height on plaintiff’s ability to perform this job.
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Therefore, for the reasons stated and based on the record as a whole, the Court
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concludes that plaintiff has not demonstrated that step three of the credit-as-true test is
met and has not demonstrated that crediting the opinion of Ms. Lang as true requires a

24 finding of disability.

ORDER ON PLAINTIFF’S COMPLAINT - 9

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Plaintiff also argues that as a matter of law, he could not have performed the job of

2 bead cutter as generally performed because it was a composite job; however, for the
3 reasons discussed, this argument is not persuasive. As noted by plaintiff, the ALJ did not
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find that plaintiff could perform this job of bead cutter as actually performed (see Dkt.
24, p. 4 n.10). This corresponds to the VE’s testimony that one with plaintiff’s RFC (as

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found by the ALJ without the further limitations opined by Ms. Lang) could not perform
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the job of bead cutter/mold cutter as actually performed (see AR. 47).
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As testified to by plaintiff, and as confirmed by the VE’s testimony, the way in
which plaintiff performed his job of bead cutter/mold cutter was significantly different

11 from the way in which it generally is performed, as he had duties requiring him “several
12 times a day” to go to the chateau table and help a second person flip over a door; once or
13 twice a week fill in for someone at the chateau table; and, numerous times “bear doors off
14 of prefit” and “go down in the glazing line to help putting the glass in” (see AR. 35-36).
15 The VE’s testimony verifies plaintiff’s argument that his previous work as actually
16 performed contained “many duties that were separate from the duties of a bead cutter,
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and that required an exertional capacity far beyond the job requirements of a bead cutter
as described in the DOT” (see Dkt. 14, p. 13). The VE testified that lifting the doors with

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someone else put the bead cutter/mold cutter job as actually performed, which as
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generally performed is a light job (see AR. 45), into the medium to heavy category (see
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AR. 46).
However, the conclusion mandated by these facts is not clear. Although plaintiff

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ORDER ON PLAINTIFF’S COMPLAINT - 10

1 therefore was a “composite job” as a matter of law, a relevant Social Security Ruling
2 (“SSR”) contradicts that argument. It is true, as noted by plaintiff, that according to the
3 internal Social Security guideline, the POMS, “composite jobs have significant elements
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of two or more occupations and as such, have no counterpart in the DOT;” and that an
ALJ should therefore “not evaluate it at the part of step 4 considering work ‘as generally

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performed in the national economy.’” POMS DI § 25005.020(B), available at
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https://secure.ssa.gov/poms.nsf/lnx/0425005020, last visited 01/12/2015. However, it also
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is true that this provision of the POMS has significant tension with SSR 82-61, which
includes the following:
A former job performed by the claimant may have involved functional
demands and job duties significantly in excess of those generally
required for the job by other employers throughout the national
economy. Under this test, if the claimant cannot perform the excessive
functional demands and/or job duties actually required in the former job
but can perform the functional demands and job duties as generally
required by employers throughout the economy, the claimant should be
found to be “not disabled.”

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SSR 82-61, 1982 SSR LEXIS 31 at * 4.
In addition, according to the Ninth Circuit, although the “POMS may be ‘entitled

18 to respect’ under Skidmore v. Swift & Co., 323 U.S. 134 (1994) to the extent it provides a
19 persuasive interpretation of an ambiguous regulation, [] it ‘does not impose judicially
20 enforceable duties on either this court or the ALJ.’” Carillo-Years v. Astrue, 671 F.3d
21 731, 735 (9th Cir. 2011) (citations omitted). Here, in this matter, it appears that this
22 POMS section conflicts with SSR 82-61 and actually creates ambiguity. See SSR 82-61,
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1982 SSR LEXIS 31 at * 4. Therefore, the Court concludes that plaintiff has not

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1 demonstrated that he is disabled as a matter of law and that no further issues need be
2 determined by the ALJ. Plaintiff has not demonstrated that “entitlement to benefits is
3 clear under the applicable legal rules.” See Treichler, supra, 2014 U.S. App. LEXIS
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Therefore, for the reasons stated and based on the record as a whole, the Court

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concludes that this matter must be remanded for further administrative consideration.
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CONCLUSION
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The parties admit that the ALJ erred with respect to the opinion of Ms. Lang, and
the Court concludes that the record does not require further development regarding her

11 opinion. However, crediting-as-true her opinion does not require a finding of disability,
12 and plaintiff has not demonstrated that he otherwise was disabled as a matter of law
13 during the relevant period of time.
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Based on these reasons and the relevant record, the Court ORDERS that this

15 matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §
16 405(g) to the Acting Commissioner for further consideration consistent with this order.
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JUDGMENT should be for plaintiff and the case should be closed.
Dated this 14th day of January, 2015.

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A

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J. Richard Creatura
United States Magistrate Judge

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