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Larry White, Sr v. Michael J. Astrue

September 17, 2012


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


Larry White, Sr. ("White") seeks judicial review pursuant to the Social Security Act ("Act"),*fn1 more specifically Sections 405(g) and 1383(c)(3), of the final decision of Commissioner of Social Security Michael J. Astrue ("Commissioner") denying White's claim for supplemental security income ("SSI") disability benefits. White has alternatively moved for summary judgment under Fed. R. Civ. P. ("Rule") 56 or to remand for further proceedings, while Commissioner seeks affirmance of the decision (effectively a cross-motion for summary judgment). For the reasons stated in this memorandum opinion and order, both motions for summary judgment are denied and White's alternative motion for remand is granted.

Procedural Background*fn2

On May 27, 2008 White filed an application for disability insurance and SSI (R. 16). Because White's insured status had expired on September 30, 2007 (id.), he needed to establish a disability on or before that date to be entitled to disability benefits (id.). To that end White's application alleged disability beginning on June 1, 2005 (id.).

On August 22, 2008 White's claims were denied (id.), and they were again denied on reconsideration on December 2, 2008 (id.).On January 8, 2009 White filed a timely request for a hearing (id.), and Administrative Law Judge Percival Harmon ("ALJ Harmon") held that hearing on July 14, 2010 (R. 34).

On September 20, 2010 ALJ Harmon ruled that White was currently disabled but that he had not become disabled until June 9, 2009 (when his status changed due to a change in age category) (R. 23-25). ALJ Harmon found that White was not disabled before that date because, despite his alleged limitations, he could still perform a significant number of jobs in the national economy (id.). White requested review by the Appeals Council, but his request was denied on September 29, 2011 (R. 1). ALJ Harmon's decision was accordingly left as the final decision of the Commissioner (id.). On February 6, 2012 White filed this action.

General Background

White, born on June 10, 1959, was 50 years old on the date that ALJ Harmon found him to be disabled (R. 185).White has a high school education and has previously worked at a mortgage company as an owner, an account executive and a loan officer (R. 209-10, 213, 215-22).

White's application for disability benefits asserted that his medical conditions prevented him from working. That application identified the causes of his inability to work as Graves' Disease, a sciatic condition, nerve damage on his left side and depression (R. 208, 337, 366). White asserts that those conditions have caused a variety of limitations that severely restrict his ability to work and carry on normal activities.

Medical Evidence

In 2002, after complaining of back pain that radiated down his left leg, White was diagnosed with chronic lumbosacral strain and sciatica extending into his left leg(R. 301, 364). White continued to suffer pain from the lumbar strain and the sciatica when, in July 2005, he sought additional medical treatment after he also began suffering from fatigue, extreme weight loss, muscle weakness, chills, night sweats, blurred vision and dizziness (R. 293, 306, 311-12, 373-74).White lost about 30 to 35 pounds between June and September 2005 (R. 293, 311-12, 316).

In November 2005 doctors diagnosed White with Graves' Disease, "an enlarged thyroid with overactivity of the thyroid gland" (R. 78) (R. 314-19). Despite receiving radioactive iodine therapy to treat the condition, White continued to feel extreme lethargy and experienced rapid weight gain (R. 314-19, 364, 372). Doctors prescribed various medications, including Flexeril, Tylenol 3, Levothroxine and Xanax (R. 298, 301, 321, 331, 337, 374, 384, 391).

White's treating physician Dr. Georges Germain treated White throughout the course of his illness, beginning in 2001 (R. 380). On May 21, 2009 Dr. Germain wrote a letter stating that White suffered from chronic lumbosacral strain with sciatica, long standing hypothroidism and severe depression, with these effects (R. 364).

Because of the above [listed conditions] [White] has been gaining excessive amounts of weight that has aggravated his lumbo-sacral discomfort to the point where it has been impossible to carry the daily working activities. His depression has caused severe memory lapses.

He has been evaluated by a psychiatrist that confirmed the diagnosis however he has not be treated. In 2005 Larry's [White's] condition deteriorated to the point where he became incapable of working. Larry is still disabled and probably will remain so for at least a year or two.

Dr. Germain wrote another letter on March 25, 2010 giving an overview of various symptoms and stating (R.277):

I believe that Mr. White is unable to accomplish any competitive work and will continue to exhibit the above symptoms for a long time to come. His chances for recovery are little to moderate.

Dr. Germain also completed a "Multiple Impairment Questionnaire" (the "Questionnaire") summarizing multiple findings relevant to this case (R. 380-87). Dr. Germain stated there that White suffers from chronic lumbosacral pain and sciatica, hyperthyroidism and depression, and he summarized some of the symptoms resultant from those conditions (R. 380-87). Dr. Germain said that White suffered from "mild to moderate" pain that is "constant but punctuated by bouts of exacerbations" and that "any effort [or] any strain" would exacerbate the pain (R. 381-82). Dr. Germain placed White's pain and fatigue at a "6" on a 10- point scale (R. 382). Dr. Germain answered "no" when asked if he had been able to relieve White's pain with medications completely without "unacceptable side effects" (R. 382). Dr. Germain also opined on White's residual functioning capacity ("RFC") if placed in a normal work environment, stating that White had multiple limitations, including (1) the ability to sit for just 0 to 1 hour and stand/walk for just 0 to 1 hour in an 8 hour day, (2) the inability to sit or stand/walk continuously in a work setting, (3) the ability to occasionally lift or carry 0 to 10 pounds and never lift or carry more than 10 pounds, (4) significant limitations in reaching, handling, fingering or lifting, (5) marked limitation in the ability to grasp, turn or twist objects and (6) marked limitation in the arms for reaching (R. 382-84). Dr. Germain stated that White's symptoms would likely increase if placed in a competitive work environment, that he could not do a full time competitive job that requires activity on a sustained basis and that he was incapable of even low stress work ("stress is the most constant and aggravating factor") (R. 384-85). Finally, Dr. Germain stated that the earliest date that the symptoms and limitations in the Questionnaire applied was July 2005 (R. 386).

White also consulted several other physicians. In July 2008 White saw Dr. Fauzia Rana, whose thoroughgoing examination produced a host of detailed physical findings (R. 321-28). Dr. Rana diagnosed Graves' disease, possible degenerative arthritis with possible lumbosacral radiculopathy, uncontrolled high blood pressure and gross obesity (R. 323).

In August 2008 Dr. C.A. Gotway, a state agency physician, reviewed the record evidence and concluded that White could lift and/or carry 20 pounds occasionally and 10 pounds frequently and could stand and/or walk about 6 hours in an 8-hour day and sit about 6 hours in an 8-hour day (R. 329-36). Dr. Gotway also indicated that White was limited in his ability to perform postural maneuvers (R. 331).

In addition to his physical ailments, in July 2005 White began experiencing daily feelings of depression (R. 337, 366), and Dr. Germain referred him for psychiatric treatment (R. 377-78). In 2008 White told treating psychiatrist Dr. Robert Buchanan that he continued to experience daily feelings of depression and that he was "angry a lot" (R. 337, 366). Dr. Buchanan confirmed that White displayed an angry attitude when answering questions (R. 337, 366) and diagnosed White with major depression, possible Post-Traumatic Syndrome Disorder ("PTSD") and probable mixed personality disorder with narcissistic features (R. 339, 367).

Dr. Buchanan stated that White's depression set in when the first symptoms of Graves' Disease manifested themselves and White became unable to work (R. 339, 367).

In November 2008 state agency psychologist Dr. Hermsmeyer reviewed the record evidence and concluded that White would have problems with understanding, remembering and carrying out detailed instructions (R. 344-61). Dr. Hermseyer also found that White retained the mental capacity to perform simple one- and two-step tasks at a consistent pace (R. 344-61). Finally, in July 2010 Dr. Sarlo supervised a psychological evaluation of White and completed a "Psychiatric/Psychological Impairment Questionnaire" (R. 395-402, 405-12).

White's Hearing Testimony

White testified on his ailments and limitations at the July 14, 2010 hearing. Much of that testimony dealt with his pain and its effects. On a "normal day" the pain is "not that bad . . . probably a four or five until I sit a certain way, of [sic] long time. And then I have to either adjust, or go lay down, or something like that before it gets worse" (R. 56). At its worst the pain was a "12" on a 10-point scale and the pain from his lumbar strain and sciatica was like "a toothache throughout your whole back, through your leg" (R. 55-56). White also said that the pain is made worse by sitting, standing or walking (R. 56). White stated that the chronic pain made caring for his personal needs difficult (R. 71-72) and ...

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