MCMILLAN v. COMMISSIONER OF SOCIAL SECURITY

Filing 22

OPINION. Signed by Judge Claire C. Cecchi on 12/18/2018. (sm)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MICHELLE MCMILLAN,

Civil Action No.: 16-313 (CCC)
Plaintiff,
OPINION

V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
CECCHI, District Judge.
I.

INTRODUCTION

Before the Court is Plaintiff Michelle McMillan’s appeal seeking review of a final
determination by the Commissioner of the Social Security Administration (“Defendant”) denying
her application for a period of disability and Disability Insurance Benefits (“DIB”) pursuant to
Title II of the Social Security Act (“SSA”). This matter is decided without oral argument pursuant
to Federal Rule of Civil Procedure 78. For the reasons set forth below, the decision of the
Administrative Law Judge (“AU”) is vacated and the case is remanded for further administrative
proceedings.
II.
A.

BACKGROUND

Factual Background

Plaintiff, an adult female, was born on February 5, 1969. (Tr. at 30). Plaintiff possesses
an eleventh grade education, (Id. at 32), and has previously worked as a school crossing guard,
teacher’s aide, and bus aide. (Id. at 33-36). Plaintiff has testified that she left her job as a result

1”Tr.” refers to the certified record of the administrative proceedings. (ECF No. 13).
1

of a knee injury which left her in such serious pain that she could not get out of bed without help
or walk without a cane. (Id. at 36). Plaintiff also testified that she suffers from hip pain, which is
believed to be causally related to her knee injury.

(Id. at 37).

In late 2011, PLaintiff was

hospitalized with an aortic aneurysm. (Id. at 41). Plaintiff testified that the medication she was
prescribed following her aneurysm made her too drowsy to function at work, (id. at 40), and that
her medical conditions have affected her mobility. (Id. 53). Additionally, Plaintiff has testified
that she suffers from depression. (Id. at 50-5 1). Finally, Plaintiff is obese. (Id. at 430).
B.

Procedural Background

On June 11, 2012, Plaintiff applied for a period of disability and DIB.

(Id. at 12).

Plaintiffs alleged onset date is April 10, 2006. (Id.). On September 8, 2012, Plaintiffs application
was initially denied. (Id. at 78-79). On November 27, 2012, Plaintiffs application was once again
denied on reconsideration.

(Id. at 93-94).

Plaintiff requested an AU hearing, which was

conducted on December 23, 2013. (Id. at 26-65). On February 4, 2014, the AU issued her opinion
concluding that Plaintiff was not disabled within the meaning of sections 216(1) and 223(d) of the
S$A. (Id. at 12-20). Plaintiff sought review by the Appeals Council, which denied review on May
13, 2015. (Id. at 1). Thereafter, Plaintiff instituted this action seeking judicial review of the AU
decision.
III.
A.

LEGAL STANDARD

Standard of Review

This Court has jurisdiction to review the Commissioner’s decision under 42 U.S.C.

§ 405(g)

and 1383(c)(3). The Court is not “permitted to re-weigh the evidence or impose [itsi

own factual determinations,” but must give deference to the administrative findings. Chandler v.
Comm ‘r ofSoc. Sec., 667 f.3d 356, 359 (3d Cir. 2011); see also 42 U.S.C.

2

§ 405(g).

Nevertheless,

the Court must “scrutinize the record as a whole to determine whether the conclusions reached are
rational” and supported by substantial evidence. Gober v. Matthews, 574 f.2d 772, 776 (3d Cir.
197$) (citations omitted). Substantial evidence is more than a mere scintilla, and is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Chandler, 667
F.3d at 359 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the factual record is
adequately developed, substantial evidence “may be ‘something less than the weight of the
evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial evidence.”
Daniels v. Astrue, No. 08-1676, 2009 WL 1011527, at *2 (M.D. Pa. Apr. 15, 2009) (quoting
Consolo v. fed. Mar. Comm ‘11, 383 U.S. 607, 620 (1966)). In other words, under this deferential

standard of review, the Court may not set aside the AU’s decision merely because it would have
come to a different conclusion. Cruz v. Comm ‘r ofSoc. Sec., 244 F. App’x 475, 479 (3d Cir. 2007)
(citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)).
B.

Determining Disability

In order to be eligible for benefits under the SSA, a plaintiff must show she is disabled by
demonstrating an inability to “engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C.
§S 423(d)(1)(A), 1382c(a)(3)(A). Taking into account the plaintiffs age, education, and work
experience, disability will be evaluated by the plaintiffs ability to engage in her previous work or
any other form of substantial gainful activity existing in the national economy.

§ 423(d)(2)(A),

42 U.S.C.

1382c(a)(3)(B). A person is disabled for SSA purposes only if his physical or

mental impairments are “of such severity that he is not only unable to do his previous work, but

3

cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy

.

.

.

.“

42 U.S.C.

§ 1382c(a)(3)(B).

Decisions regarding disability will be made individually and will be “based on evidence
adduced at a hearing.” Sykes v. Apfel, 22$ F.3d 259, 262 (3d Cir. 2000) (citing Heckler v.
Campbell, 461 U.S. 45$, 467 (19$3)). Congress has established the type of evidence necessary to
prove the existence of a disabling impairment by defining a physical or mental impairment as “an
impairment that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.

§ 423(d)(3), 13$2(a)(3)(D).
C.

Sequential Evaluation Process

The Social Security Administration follows a five-step, sequential evaluation to determine
whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R.

§ § 404.1520, 416.920.

first, the AU must determine whether the plaintiff is currently engaged in gainful activity. Sykes,
22$ F.3d at 262. Second, if she is not, the AU determines whether the plaintiff has an impairment
that limits her ability to work. Id. Third, if she has such an impairment, the AU considers the
medical evidence to determine whether the impairment is listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (the “Listings”).

If it is, this results in a presumption of disability. Id.

If the

impairment is not in the Listings, the AU must determine how much residual functional capacity
(“RFC”) the applicant retains in spite of her impairment. Id. at 263. fourth, the AU must consider
whether the plaintiff’s Rf C is enough to perform her past relevant work. Id. fifth, if her RFC is
not enough, the AU must determine whether there is other work in the national economy the
plaintiff can perform. Id.

4

The evaluation continues through each step unless it is determined at any point the plaintiff
is or is not disabled. 20 C.F.R.

§ 404.1520(a)(4), 416.920(a)(4).

The plaintiff bears the burden

of proof at steps one, two, and four, upon which the burden shifts to the Commissioner at step five.
Sykes, 228 F.3d at 263. Neither party bears the burden at step three. Id. at 263 n.2.
IV.

A.

DISCUSSION

Summary of the AU decision.

At step one, the AU found that Plaintiff last met the insured status requirements of the
SSA on March 31, 2012 and had not engaged in substantial gainful activity between the alleged
onset date and her last date insured. (Tr. at 14). At step two, the AU found that Plaintiff suffered
from the following six severe impairments: dissecting aortic aneurysm, depression, anxiety
disorder, hypertension, knee pain, and obesity. (Id.).
However, at step three, the AU found that Plaintiffs impairments were not, either
individually or in combination, the medical equivalent of any of the listed impairments. (Id.). The
AU then concluded that Plaintiff retained the RFC to perform sedentary work, except that she was
limited to “simple and routine tasks.” (Id. at 16). At step four, the AU concluded that Plaintiff
was unable to perform any past relevant work. (Id. at 19). At step five, the AU concluded that
there were jobs that existed in significant numbers in the national economy that the claimant could
have performed. (Id.). Accordingly, the AU then concluded that Plaintiff was not disabled under
the SSA at any point between the onset date and Plaintiffs last date insured. (Id. at 20).
B.

Analysis

Plaintiff argues this Court should remand due to the AU’s failure to evaluate, at step three,
Plaintiffs obesity in accordance with Social Security Ruling (“$SR”) 02-DIp, 2002 SSR LEXIS
1 (Sept. 12, 2002). (ECF No. 19 at 17-30). The Third Circuit addressed this issue in Diaz v.

5

Comm ‘r ofSoc. Sec., where the AU found obesity was a severe impairment at step two, but failed
to assess the impact of obesity on the claimant’s other impairments at step three. 577 F.3d 500,
503 (3d Cir. 2009). The Diaz court noted the Commissioner’s modification to the Appendix I
Listing regarding obesity in 2000 served to replace “the automatic designation of obesity” based
on height and weight with an “individualized inquiry.” Id. This inquiry is meant to focus on “the
combined effect of obesity and other severe impairments.” Id. The court determined “an AU
must meaningfully consider the effect of a claimant’s obesity, individually and in combination
with her impairments, on her workplace function at step three and at every subsequent step.” Id.
at 504. In assessing the impact of a claimant’s obesity, the AU must discuss the evidence and
explain her reasoning in a manner that would be “sufficient to enable meaningful judicial review.”
Id.
Here, as in Diaz, the AU

identified Plaintiffs obesity as one of Plaintiffs severe

impairments at step two. (Tr. at 14). Also as in Diaz, Plaintiff complains of ailments which would
seem, “as a matter of common sense,” to have been plausibly exacerbated by her obesity. Diaz,
577 F.3d at 504 (citations omitted); see also S$R OO-3p, 65 fed. Reg. 31039, 3 1040-42 (May 15,
2000) (“[O]besity may increase the severity of coexisting or related impairments.

.

.

.

This is

especially true of musculoskeletal, respiratory, and cardiovascular impairments. It may also be
true for other coexisting or related impairments, including mental disorders.”). However, the AU
does not adequately explain how Plaintiffs obesity factored into her analysis of Plaintiffs
condition at step three. To the extent that the opinion considers obesity, it does so only in passing
and in conclusory form as part of the RFC analysis: “[o]wing to [Plaintiffs] obesity, aortic
aneurysm, and knee complaints, I have found her to be sedentary.” (Id. at 1$). The AU does not
acknowledge that obesity has the capacity to affect comorbid impairments, and her opinion does

6

not refer to any evidence describing Plaintiffs obesity. Nor does the AU indicate, even in
conclusory fashion, that any such evidence was considered as part of the AU’s analysis of the
Listings. Cf Neffv. Astrue, 875 F. Supp. 2d 411,423 (D. Del. 2012) (holding that AU sufficiently
considered plaintiffs obesity where the AU specifically mentioned obesity’s potential impact on
comorbid conditions, stated that plaintiffs obesity was considered, and provided at least minimal
analysis). Indeed, the Court notes that the AU’s analysis of the Listings, (Tr. at 14-16), does not
include any reference to obesity either in general or with respect to Plaintiff.
The AU’s step three obesity analysis is thus insufficient. The Diaz court concluded,
“where [Plaintiff sJ obesity was urged, and acknowledged by the AU, as a severe impairment that
was required to be considered alone and in combination with her impairments at step three,” and
“absent analysis of the cumulative impact of [Plaintiffs] obesity and other impairments on her
functional capabilities, we are at a loss in our reviewing function.” 577 f.3d at 504. Similarly,
because the opinion here does not consider the effect of Plaintiffs obesity at step three, either
separately or in combination with Plaintiffs comorbid impairments, in a form that allows for
meaningful judicial review, the Court cannot conclude that the AU’s step three conclusion was
supported by substantial evidence. See Moore v. Cornmr of Soc. Sec., No. 11-05369, 2013 WL
941558, at *4 (D.N.J. Mar. 8, 2013) (“A blanket statement that an AU has considered evidence is
not the same thing as an AU actually discussing the evidence.”). The Court will therefore remand
for an analysis of Plaintiffs obesity, including an analysis of its impact on Plaintiffs other
impairments.
Plaintiff makes other arguments relating to the AU’s subsequent RFC analysis. Because
the Court finds that the AU’s opinion was not supported by substantial evidence at step three, it
will remand and need not consider Plaintiffs other arguments at this juncture.

7

V.

CONCLUSION

For the foregoing reasons, the Court will vacate the AU’s decision and remand this case
for further administrative proceedings consistent with this Opinion. An appropriate Order follows.

DATED:

L
—

C

%

CLAIRE C. CECCHI, U.S.D.J.

8