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White v. Saul

United States District Court, W.D. Texas, San Antonio Division

June 26, 2019

ANDREW SAUL, COMMISSIONER OF SOCIAL Security Administration[1] Defendant.



         To the Honorable United States District Judge Xavier Rodriguez:

         This Report and Recommendation concerns Plaintiff Anthony Aaron White's request for judicial review of the administrative denial of his application for disability insurance benefits under Titles II and XVI of the Social Security Act. This action was assigned to the undersigned pursuant to 28 U.S.C. § 636(b), Rule 1(h) of Appendix C to the Local Rules, and the docket management order entered on September 29, 2017 in the San Antonio Division of the Western District of Texas. This Court has jurisdiction to review a final decision of the Social Security Administration. See 42 U.S.C. §§ 405(g), 1383(c)(3). Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B).

         After considering White's Brief, Dkt. No. 16, the Brief in Support of the Commissioner's Decision, Dkt. No. 17, White's Reply Brief, Dkt. No. 19, the transcript of the administrative proceedings (“Tr.”), Dkt. No. 9, the other pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, and the entire record in this matter, the undersigned concludes that the Administrative Law Judge (“ALJ”) erred in failing to classify White's brain lesion and seizures as severe. This error was not harmless; the ALJ never considered the functional limitations associated with these impairments when assessing White's residual functional capacity. The Commissioner's decision should be REVERSED and this matter REMANDED for further consideration as discussed herein.

         I. Factual and Procedural Background

         Plaintiff Anthony White filed his application for disability and supplemental social security benefits in the fall of 2013, alleging a disability onset date of May 12, 2012, see Tr. 207-15, which he later amended to September 9, 2013. See Id. 45, 68-9, 85.[2] White was 47 years old on his amended alleged onset date and 50 years old at the time of the ALJ's decision. He is an Army veteran with a four-year college degree. See Id. 70, 207, 230. White last worked in May 2012 as a safety manager for HEB but later resigned his employment after suffering issues with his memory, concentration, and becoming agitated with peers. See Id. 70, 229. White thereafter attempted to work in a call center but only stayed in that position for a few weeks. See Id. 71. According to White, the sedentary position-which also required looking at a computer screen for long hours- aggravated his back pain and migraines. See id.

         White alleged that the following impairments rendered him disabled: rheumatoid arthritis, severe depression, anxiety, and fibromyalgia. See Id. 229. White's claims were initially denied on November 25, 2013, Id. 97-117, and again on April 17, 2014, following his request for reconsideration, Id. 119-49. White then requested and received an administrative hearing. Id. 166-84. He and his attorney attended the hearing on February 23, 2016, at which White and vocational expert Howard Marnan testified. Id. 63-95. At the hearing, White revealed that he had been diagnosed in April 2015 with a brain tumor on his left frontal lobe. See Id. 71-72, 74 (discussing Tr. 1046-48). The tumor was found on an MRI after White complained of tinnitus of the ear, migraines, and a seizure. See Id. 74. Follow-up MRIs in October 2015 and January 2016 revealed a stable left frontal lobe cortical/subcortical intra-axial lesion without enhancement “possibly reflecting chronic microangiopathy.” Id. 1151, 1247. White also reported suffering a “mild seizure” two days before the hearing. Id. 80. At the time of the hearing White was living at the Haven for Hope Homeless Shelter. See Id. 77.

         On March 28, 2016, the ALJ denied White's claim for disability benefits. Id. 42-58. In her analysis, the ALJ first found that White met the insured-status requirements of the Social Security Act, and then applied the five-step sequential analysis required by the regulations. See Id. at 45-47. At step one of the analysis, the ALJ found White had not engaged in substantial gainful activity since the alleged amended disability onset date of September 9, 2013. Id. 47. At step two, the ALJ found White has the following severe impairments: fibromyalgia, degenerative changes at ¶ 3-L4 through L5-S1, inferior acromial spurring of the right shoulder, migraines, sleep apnea and obesity. Id. 47-48. The ALJ, however, found that White's brain lesion and seizures were not severe impairments because they didn't meet the required 12-month durational period. Id. 48. The ALJ also found White's tinnitus wasn't severe because “[t]he record does not have any objective medical findings regarding [White's] tinnitus showing a degree of limitation that would significantly limit [White's] physical ability to perform work related activities due to tinnitus.” Id. Finally, the ALJ categorized White's medically determinable mental impairments of depression and anxiety as non-severe. Id. 48-49.

         At step three, the ALJ found that none of White's impairments met or medically equaled the impairments of one of the listed impairments in the applicable Social Security regulations. Id. 50-51. The ALJ paid particular attention to the criteria for listings under Listing 1.04 (Disorders of the Spine), 1.02B (Major dysfunction of a Joint), and 3.10 (Sleep-related breathing disorders). She considered no listing with respect to White's migraines; the ALJ instead determined that White's medical records “do[] not document any neurological deficits related to [his] headaches.” Id.

         Before reaching step four of the analysis, the ALJ found that White has the physical residual functional capacity to:

[L]ift and carry 20 pounds occasionally, and 10 pounds frequently; stand and walk about 6 hours in any given workday. He can only occasionally push and pull, or reach overhead with the right upper extremity. He can occasionally stoop, crouch, and climb stairs. He can crawl, kneel, and balance frequently, but cannot climb ladders or scaffolds or work around dangerous moving machinery. [White's] work should not require concentrated exposure to cold.

Id. 52. With respect to White's mental capacity, the ALJ determined that:

[White] can understand, remember, and carry out simple, unskilled, entry-level work; with Specific Vocational Preparation of 2 (SVP 2). [White] can concentrate and pay attention at that level of complexity and can sustain a 40-hour workweek without an unreasonable No. of additional work breaks; he can make decisions and attend to subject matter for extended periods, he can take instructions and respond appropriately to changes in a routine work environment. He can also interact appropriately with the general public, supervisors, and co-workers.


         At step four, after considering the residual functional capacity and the testimony of the vocational expert, the ALJ determined that White was able to perform his past relevant work as an electronics worker (Dictionary of Occupational Titles (“DOT”) #726.687-010). Id. 56. In the alternative, the ALJ found at step five that considering White's age, educational factors, prior work experience, and residual functional capacity, as well as the testimony of the vocational expert, White could perform the following jobs existing in significant No. in the national economy: office cleaner (DOT # 323.687-014), bench assembler (DOT #705 6.684-022), and laundry folder (DOT # 369.687-018)- positions that the DOT classifies as light and unskilled. Id. 57. Accordingly, the ALJ determined that White was not disabled for purposes of the Act, and therefore was not entitled to receive benefits. Id.

         The Appeals Council denied White's subsequent request for review of the ALJ's finding. Id. 36-41. Accordingly, on August 3, 2018, after exhausting all available ...

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