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Milburn v. Colvin

United States District Court, D. Maryland

May 31, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.



         Plaintiff Shante Milburn (“Ms. Milburn” or “Plaintiff”) brought this action pursuant to 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her claims for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Act, 42 U.S.C. §§ 401-433, 1381-1383f. The parties consented to a referral to a United States Magistrate Judge for all proceedings and final disposition. See ECF Nos. 2, 6.[1] Pending and ready for resolution are Plaintiff’s Motion for Summary Judgment (ECF No. 12) and Defendant’s Motion for Summary Judgment (ECF No. 14). No hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons set forth below, Plaintiff’s Motion for Summary Judgment will be denied, but her alternative request for a remand will be granted. Defendant’s Motion for Summary Judgment will be denied.

         1. Background.

         On February 22, 2012[2] Ms. Milburn protectively filed applications for DIB[3] and SSI alleging a disability onset date of January 1, 2011 due to a spine injury, lumbar post fusion syndrome, peroneal motor neuropathy, fibromyalgia, migraines and depression. R. at 9, 67, 77, 88, 99, 170-79, 180-83. Ms. Milburn’s applications were initially denied on June 5, 2012. R. at 116-19, 120-23. Ms. Milburn requested reconsideration and on December 11, 2012, the applications were denied again. R. at 124-25, 126-27. The Social Security Administration acknowledged receiving Ms. Milburn’s request for a hearing before an Administrative Law Judge (“ALJ”) on February 4, 2013. R. at 128-29, 130-31. On February 11, 2014 an ALJ convened a hearing via video teleconference. R. at 26-44. Ms. Milburn was represented by counsel. During the hearing the ALJ obtained testimony from Ms. Milburn and a vocational expert (“VE”). In the February 20, 2014 decision the ALJ found Ms. Milburn has not been under a disability as defined in the Social Security Act, from January 1, 2011[4] through the date of the decision. R. at 20. On March 6, 2014 Ms. Milburn requested a review of the hearing decision. R. at 5. On April 13, 2015 the Appeals Council denied Ms. Milburn’s request for review, R. at 1-3, making the ALJ’s determination the Commissioner’s final decision.

         2. ALJ’s Decision.

         The ALJ evaluated Ms. Milburn’s claims for DIB and SSI using the sequential evaluation process set forth in 20 C.F.R. §§ 404.1520, 416.920 (2013). Ms. Milburn bears the burden of demonstrating her disability as to the first four steps. At step five the burden shifts to the Commissioner. Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015).

         At step one the ALJ found Ms. Milburn has not engaged in substantial gainful activity since January 1, 2011, the alleged onset date. R. at 13. The ALJ concluded at step two that Ms. Milburn has the following severe impairments: degenerative disc disease with associated lumbar post-fusion syndrome, fibromyalgia, anxiety, depression, and obesity. Id. Also at this step the ALJ determined all other impairments are non-severe. “The impairments are nonsevere because they have not existed for a continuous period of twelve months, they are responsive to medication, they do not require any significant medical treatment, or they do not result in any continuous exertional or nonexertional functional limitations.” Id.

         At step three the ALJ found Ms. Milburn does not have an impairment or combination of impairments which meets or medically equals a listed impairment. The ALJ specifically considered Listings 1.04 (disorders of the spine), 1.06 (fracture of the femur, tibia, pelvis, or one or more of the tarsal bones), 12.04 (affective disorders)[5] and obesity.

The record does not support degenerative disc disease with associated lumbar post-fusion syndrome nerve root compression characterized by neuro-anatomic distribution of pain with the other symptoms required by Listing 1.04. There is no evidence of joint dysfunction involving one major peripheral weight-bearing joint, resulting in inability to ambulate effectively, as defined in 1.00B2b. The record fails to document persistent nonunion or an inability to ambulate effectively within 12 months of the onset date as required by listing 1.06.
Fibromyalgia[, ] singularly and in combination, has been compared to all listed impairments. The undersigned finds that the severity of the claimant’s impairment does not meet the specific requirements of any of the impairments listed by the Commissioner in Appendix 1.
Social Security Ruling 02-1p requires Administrative Law Judges to consider obesity in determining whether claimants have medically determinable impairments that are severe, whether those impairments meet or equal any listing, and finally in determining the residual functional capacity. The Clinical Guidelines issued by The National Institutes of Health define obesity as present in general where there is a body mass index (BMI) of 30.0 or above . . . The claimant’s BMI is 32.0 according to her most recent medical records.
As indicated in Social Security Ruling (SSR) 02-01p, obesity may have an adverse impact upon co-existing impairments. For example, obesity may affect the cardiovascular and respiratory systems, making it harder for the chest and lungs to expand and imposing a greater burden upon the heart. Someone with obesity and arthritis affecting a weight-bearing joint may have more pain and limitation than might be expected from arthritis alone. In addition, obesity may limit an individual’s ability to sustain activity on a regular and continuing basis during an eight-hour day, five-day week, or equivalent schedule. These considerations have been taken into account in reaching the conclusions herein. Accordingly, the claimant’s obesity in the absence of evidence to conclude otherwise does not increase the severity of the claimant’s coexisting impairments to the extent that the combination of impairments meets the requirements of a listing.

R. at 13-14 (citations omitted).

         In accordance with 20 C.F.R. §§ 404.1520a, 416.920a, the ALJ followed a special technique to evaluate the severity of Ms. Milburn’s mental impairment.[6] The four broad functional areas-(1) activities of daily living, (2) social functioning, (3) concentration, persistence, or pace, and (4) episodes of decompensation-are known as the “paragraph B” criteria for most of the mental disorders listed in Appendix 1. In rating the first three functional areas the ALJ cited repeatedly the record from a psychological consultative examination. See R. at 498-99. The ALJ determined Ms. Milburn has a mild restriction in her activities of daily living. The ALJ noted Ms. Milburn regularly cares for her own personal needs, such as dressing and bathing. She shops for groceries, cares for her children, watches television and reads books and newspapers. R. at 14. With regard to social functioning, the ALJ found Ms. Milburn has mild difficulties. The ALJ noted Ms. Milburn is respectful and very cooperative, denies any delusional or psychotic abnormalities and has no difficulties relating to her co-workers. Id.

         As for concentration, persistence, or pace, the ALJ determined Ms. Milburn has moderate difficulties. The ALJ noted Ms. Milburn is fully oriented, her concentration and memory are adequate in all areas, she can understand and follow simple instructions independently, her fund of information is normal, her judgment and insight are generally intact, and she is capable of managing her assets. Id. Fourth, the ALJ found Ms. Milburn has not experienced any episodes of decompensation. Id. Because Ms. Milburn’s mental impairment does not cause at least two “marked” limitations or one “marked” limitation and “repeated” episodes of decompensation, each of extended duration, the “paragraph B” criteria are not satisfied. R. at 15. The ALJ then proceeded to consider the “paragraph C” criteria.

The undersigned has also considered whether the “paragraph C” criteria are satisfied. In this case, the evidence fails to establish the presence of the “paragraph C” criteria. The claimant does not exhibit a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate. Nor does she demonstrate a current history of one or more years’ inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement or resulting in complete inability to function independently outside the area of her home.


         Next, the ALJ proceeded to determine Ms. Milburn’s residual functional capacity (“RFC”). The ALJ found Ms. Milburn has the RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a), 416.967(a) except,

the claimant could perform no more than occasional stooping and squatting, but no crawling, climbing, or work at unprotected heights or around dangerous machinery. The claimant could perform work activities that do not require pushing or pulling with the lower extremities, and she is limited ...

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