United States District Court, W.D. Washington, Tacoma
DAVID L. WHIPPLE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
ORDER ON PLAINTIFF'S COMPLAINT
J. RICHARD CREATURA, Magistrate Judge.
This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR 13 ( see also Notice of Initial Assignment to a U.S. 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).
After considering and reviewing the record, the Court concludes that although both parties agree that the ALJ erred, and although plaintiff has established that two of the three aspects of the "credit-as-true" test are met, plaintiff has not established that the ALJ would be required to find plaintiff disabled if the improperly discredited evidence from Ms. Lang was credited as true.
Therefore, this matter is reversed and remanded for further administrative proceedings.
Plaintiff, DAVID L. WHIPPLE, was born in 1955 and was 55 years old on the amended alleged date of disability onset of April 8, 2010 ( see AR. 26, 116-19, 120-23). 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 shoulder strain status post acromioplasty and lumbar strain with degenerative changes (20 CFR 404.1520(c))" (AR. 15).
At the time of the hearing, plaintiff was living in a home with his wife (AR. 31-32).
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 reconsideration ( see AR. 59-61, 64-68). Plaintiff's requested hearing was held before Administrative Law Judge Mattie Harvin-Woode ("the ALJ") on April 19, 2012 ( see AR. 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 this civil action was pending before this Court, plaintiff filed a new application for DIB benefits, and was found disabled as of the day after the date of the ALJ decision subject to the appeal herein ( see Response Brief, Dkt. 23, p. 3).
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 plaintiff's residual functional capacity; (4) Whether or not the ALJ erred by basing her step four finding on a residual functional capacity assessment that did not include all of 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 disabled under the framework of Medical-Vocational Rule 202.06; (6) Whether or not new evidence submitted to the Appeals Council supports reversal of the ALJ's decision; and (7) Whether or not this Court should exercise its discretion and award benefits to plaintiff ( see Dkt. 14, pp. 1-2).
The defendant agrees with plaintiff that the ALJ erred in evaluating plaintiff's application and that the matter should be remanded, however defendant disagrees with plaintiff's requested remedy of reversal for payment of benefits ( see Dkt. 23, p. 1).
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. ...