United States District Court, D. Maryland
WILLIAM CONNELLY UNITED STATES MAGISTRATE JUDGE.
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. 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.
February 22, 2012 Ms. Milburn protectively filed
applications for DIB 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,
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
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).
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.
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) 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
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
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).
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. 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.
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
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.
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