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Lemay v. Colvin

United States District Court, D. Maryland

May 27, 2016

GILBERT ALAN LEMAY Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.

          MEMORANDUM OPINION

          WILLIAM CONNELLY UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.[1] 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.

         1. Background.

         On January 19, 2012[2] Mr. Lemay protectively filed applications for DIB[3] 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.

         2. ALJ’s Decision.

         The ALJ 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).

         At step 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).

         In 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.

         As for 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.

         Having 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 disease).

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).

         Next, 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.

         At step 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[4] 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 testimony[5] of 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.

         3. Standard of Review.

         The 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.

         4. Discussion.

         Plaintiff 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 ...


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