United States District Court, W.D. Texas, San Antonio Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE.
Honorable United States District Judge Xavier Rodriguez:
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).
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
Factual and Procedural Background
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. 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.
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.
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.
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.
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.
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.
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