United States District Court, D. Maryland
WILLIAM CONNELLY UNITED STATES MAGISTRATE JUDGE
Gilbert Alan Lemay (“Mr. Lemay” 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 his 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. 3, 7. Pending and ready for resolution are
Plaintiff’s Motion for Summary Judgment or, in the
Alternative, Motion for Remand (ECF No. 14) and
Defendant’s Motion for Summary Judgment (ECF No. 15).
No hearing is deemed necessary. See Local Rule 105.6
(D. Md. 2014). For the reasons set forth below,
Defendant’s Motion for Summary Judgment will be granted
and Plaintiff’s Motion for Summary Judgment or, in the
Alternative, Motion for Remand will be denied.
January 19, 2012 Mr. Lemay protectively filed applications
for DIB and
SSI alleging a disability onset date of July 15, 2011 due to
mental illness (depression and bipolar disorder). R. at 12,
73, 83, 200-07, 208-13. Mr. Lemay’s applications were
initially denied on August 17, 2012. R. at 119-22, 123-26. On
August 26, 2012 Mr. Lemay requested reconsideration. R. at
118. On January 14, 2013 the applications were denied again.
R. at 129-30. On January 23, 2013 Mr. Lemay requested a
hearing by an Administrative Law Judge (“ALJ”).
R. at 131-32. On May 8, 2014 an ALJ convened a hearing via
video teleconference. R. at 28-72. Mr. Lemay was represented
by counsel. During the hearing the ALJ obtained testimony
from Mr. Lemay and a vocational expert (“VE”). In
the May 28, 2014 decision the ALJ found Mr. Lemay has not
been under a disability as defined in the Social Security
Act, from July 15, 2011 through the date of the decision. R.
at 22. On June 4, 2014 Mr. Lemay requested a review of the
hearing decision. R. at 7. On April 27, 2015 the Appeals
Council denied Mr. Lemay’s request for review, R. at
1-3, making the ALJ’s determination the
Commissioner’s final decision.
evaluated Mr. Lemay’s claims for DIB and SSI using the
sequential evaluation process set forth in 20 C.F.R.
§§ 404.1520, 416.920 (2014). Mr. Lemay bears the
burden of demonstrating his 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 Mr. Lemay has not engaged in substantial
gainful activity since July 15, 2011, the alleged onset date.
R. at 13. The ALJ concluded at step two that Mr. Lemay has
the following severe impairment: coronary artery disease.
Id. Also at this step the ALJ considered Mr.
Lemay’s depression and anxiety, both singly and in
combination. Finding these impairments “do not cause
more than minimal limitation in the claimant’s ability
to perform basic mental work activities[, ]” the ALJ
determined these mental impairments are non-severe. R. at 14.
The ALJ elaborated on her finding.
In making this finding, the undersigned has considered the
medical evidence of record. The claimant testified that his
mental health declined following the tragic death of his wife
in a February 2011 car accident in which he was the driver.
He received regular mental health treatment from July 2011
through January 2013. He had a lapse in treatment from
January 2013 to October 2013. Mental health treatment notes
indicate that the claimant’s condition is stable on
medication and that his symptoms significantly improved.
Id. (citations omitted).
accordance with 20 C.F.R. §§ 404.1520a, 416.920a
the ALJ followed a special technique to evaluate the severity
of Mr. Lemay’s mental impairments. 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. The ALJ determined Mr. Lemay has a mild
limitation in his activities of daily living. “The
claimant testified that he is able to care for himself, cook
meals, and do household chores such as laundry, vacuuming,
sweeping, and mopping, albeit slowly.” R. at 14. With
regard to social functioning, the ALJ found Mr. Lemay has a
mild limitation. “The claimant testified that
he enjoys being with his family, and he has a friend who
visits from time to time. He was recently able to take a trip
to England. He has remarried.” Id.
concentration, persistence, or pace, the ALJ determined Mr.
Lemay has a mild limitation. “The claimant
testified that he has difficulties with memory and
concentration and that he has to write reminder notes to
himself. However, he testified that he does not miss doctor
appointments. His friend, Gail Clark, reported that the
claimant is able to follow a recipe and that he can follow
spoken instructions with occasional reinstruction.”
Id. (citation omitted). Fourth, the ALJ found Mr.
Lemay has not experienced any episodes of decompensation.
Id. Because Mr. Lemay’s bipolar disorder and
depression do not cause more than “mild”
limitation in any of the first three functional areas and
“no” episodes of decompensation in the fourth
functional area, Mr. Lemay’s mental impairments are
non-severe. Id. The ALJ then proceeded to consider
the “paragraph C” criteria.
In this case, the evidence fails to establish the presence of
the “paragraph C” criteria. There is no evidence
that the claimant has had repeated episodes of
decompensation, or that minimal increases in mental demands
or a change in the environment would cause him to
decompensate, or that he has the inability to function
outside a highly supportive living arrangement.
R. at 15. The ALJ also considered the “paragraph
C” criteria for Listing 12.06 (Anxiety Related
Disorders) which are different from the
“paragraph C” criteria for Listing 12.04
(Affective Disorders). The ALJ found no
evidence establishing the presence of Listing 12.06
“paragraph C” criteria “because there is no
evidence that the claimant’s anxiety disorder has
resulted in his complete inability to function independently
outside the area of his home.” Id.
completed the special technique for evaluating Mr.
Lemay’s mental impairments, the ALJ proceeded to step
three. The ALJ determined Mr. Lemay does not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments. The ALJ specifically considered Listing 4.04(C)
(Ischemic heart disease, Coronary artery
While the evidence documents the claimant’s diagnosis
with coronary artery disease, neither the required
angiographic evidence is present, nor an indication that the
claimant experiences very serious limitations in his ability
to independently initial, sustain, or complete activities of
daily living. He is able to perform personal care tasks,
cook, and do some household chores.
R. at 15 (citation omitted).
the ALJ proceeded to determine Mr. Lemay’s residual
functional capacity (“RFC”). The ALJ found Mr.
Lemay has the RFC to perform light work as defined in 20
C.F.R. §§ 404.1567(b), 416.967(b) except,
[the claimant] is limited to frequent crouching, crawling,
and stooping, occasional ramp and stair climbing, and no
climbing ladders, ropes, or scaffolds. Additionally, he
should avoid concentrated exposure to temperature extremes
and odors, dusts, gases, and poor ventilation.
R. at 15.
four the ALJ found Mr. Lemay is capable of performing his
past relevant work as a teacher’s aide and a census
field representative. The VE provided testimony about Mr.
Lemay’s past relevant work. The VE classified the
teacher’s aide position as light exertional level,
semiskilled, with an SVP of 3. The census field representative
position is at a light exertional level, unskilled, with an
SVP of 2. R. at 22, 67. “In comparing the
claimant’s residual functional capacity with the
physical and mental demands of this work and based upon the
the vocational expert, the undersigned finds the claimant is
able to perform his past relevant work as a teacher’s
aide and census field representative as actually and
generally performed.” R. at 22. Accordingly, the ALJ
concluded that Mr. Lemay has not been under a disability, as
defined by the Act, from July 15, 2011 through the date of
the decision. Id.
Standard of Review.
role of this court on review is to determine whether
substantial evidence supports the Commissioner’s
decision and whether the Commissioner applied the correct
legal standards. 42 U.S.C. § 405(g); Mascio,
780 F.3d at 634; Bird v. Comm’r of Soc. Sec.
Admin., 699 F.3d 337, 340 (4th Cir. 2012). Substantial
evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). It is more than a scintilla, but less than
a preponderance, of the evidence presented, Shively v.
Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (citations
omitted), and it must be sufficient to justify a refusal to
direct a verdict if the case were before a jury. Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). This
court cannot try the case de novo or resolve
evidentiary conflicts, but rather must affirm a decision
supported by substantial evidence. Id.
claims the ALJ erred in three respects: (a) failure to
recognize Mr. Lemay’s mental disorders as severe
impairments, (b) failure to accord proper weight to the
opinion of Mr. Lemay’s treating cardiologist, and (c)
exclusion of Mr. Lemay’s mental limitations from ...