Stemple v. Astrue (Maryland U.S.D.C.) (Approved for Publication)

Decided February 26, 2007. Memorandum Opinion by Magistrate Judge Susan K. Gauvey. (Approved for publication.)

In an appeal of the denial of Social Security Disability Insurance Benefits ("DIB"), the court held that the failure to consider plaintiff's obesity in combination with her other impairments (hypertension, diabetes, and peripheral neuropathy) violated Social Security Administration (the "Agency") regulations and rulings and Fourth Circuit precedent. In so doing, the court declined to accept the harmless error principle sometimes applied in other circuits when the Agency has failed to factor obesity into the determination of severity.

An Administrative Law Judge ("ALJ") must follow a five-step sequential evaluation in reviewing a claim for DIB. In this case, the ALJ stopped after the second step, explicitly considering only plaintiff's hypertension, diabetes and peripheral neuropathy and concluding that plaintiff did not have a "severe" impairment or combination of impairments. The court found, however, that the record contained evidence of other conditions, including difficulty walking unaided and obesity, that either individually or in combination with others could support a finding of a severe impairment.

Fourth Circuit precedent holds that an applicant for DIB need only make a "de minimis" showing to meet the severity standard. Applying that standard, the court held that the ALJ did not properly consider medical evidence of plaintiff's problems in walking. On the obesity issue, the court noted that some courts have found harmless error when an ALJ fails to discuss an applicant's obesity, even though Agency rules require the consideration of obesity. The court declined to apply the harmless error principle for three reasons: the principle has not been discussed or adopted by the Fourth Circuit; the facts in the harmless error cases could be distinguished from the case at bar; and the Fourth Circuit and Agency regulations are clear regarding the de minimis standard to be used in determining the severity of an impairment. The court remanded the case to the ALJ to re-evaluate the second step "severity" determination by looking at the combined effects of all of plaintiff's impairments. Furthermore, if plaintiff's impairments, either individually or in combination, are found to be severe, the court directed the ALJ to consider plaintiff's obesity at steps three, four and five of the evaluation process.

The Memorandum Opinion is available in PDF.

U.S. v. Atwell (Maryland U.S.D.C.)

Decided January 5, 2007 --Opinion by Magistrate Judge Susan Gauvey

Defendant Atwell was charged with driving under the influence under Md. Code Ann. Transportation §21-902(a) and failing to drive right of center under Md. Code Ann. Transportation §21-301(a) and the Assimilative Crime Acts, 18 U.S.C. §§7 and 13. Here the Court considered Atwell’s motion to suppress all evidence and observations on the ground that he was stopped off of federal property.

Atwell argued two primary points: (1) when a police officer effectuates a stop outside of his territorial jurisdiction, all evidence obtained after the arrest must be suppressed as illegally obtained; and (2) a police officer outside of his jurisdiction may not stop an individual for a minor traffic offense. The government has acknowledged that the stop and arrest took place beyond the special territorial jurisdiction of the United States. It argued that the arresting officer nonetheless had authority to arrest under Seip v. State of Maryland, 153 Md. App. 83 (Md. App. 2003).

In this 44-page opinion, the Court agreed with Atwell that Seip v. State does not authorize federal military officers to make an extra-territorial arrest. Further, the Court found that there is no authority under any federal or state statute or governing Maryland common law for the extra-territorial arrest. Nonetheless, the Court found that the arrest was not unreasonable under the Fourth Amendment to the United States Constitution. Thus the Court refused to suppress the evidence derived as a result of the arrest and DENIED Atwell’s motion.

The full opinion is available in PDF.

Baron Financial Corp. v. Natanzon (Maryland U.S.D.C.)

Decided December 13, 2006 – Opinion of Judge Susan K. Gauvey

Plaintiff had sued the named Defendant in the above caption above and multiple other defendants and filed a Second Amended Complaint in that case ("the 2004 case"), one of defendants (an attorney, "Rombro") had obtained a dismissal of all counts against him. Plaintiff subsequently filed a new complaint against Rombro ("the 2006 case"), for which Rombro intended to seek a dismissal or summary judgment due to collateral estoppel or res judicata. The general subject matter of both suits was Plaintiff's claims of tortuous and contractual harm arising out of Plaintiff's claims of security interests in certain merchant accounts of one of the Defendants.

After Rombro's dismissal from the 2004 case but before service of process on Rombro of the 2006 case Complaint, Plaintiff sought to depose Rombro as a non-party witness regarding the 2004 case, and Rombro sought a protective order against such deposition, on the grounds that it was inter alia, a mere "fishing expedition" and an attempt to "sidestep" the terms of his dismissal as a defendant from the 2004 case.

After a teleconference with counsel, the Court held that Rombro had not met the burden of "good cause" to merit a general protective order against a non-party witness deposition under Rule 26(c) of the Federal Rules of Civil Procedure ("FRCP"), noting that the burden was a high burden, that protective orders were to be granted sparingly and cautiously and that Rombro was likely to have considerable information relevant to the 2004 case. The Court passed an order allowing the deposition to proceed but set conditions and limits as to its promptness and duration.

The full opinion and order are available in PDF.