United States District Court, D. Maryland
VICKI Y. LEPUS-MCCARDELL, Plaintiff,
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,  Defendant.
REPORT AND RECOMMENDATIONS
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE
above-captioned case has been referred to me to review the
parties' dispositive motions and to make recommendations
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule
301.5(b)(ix). [ECF No. 4]. I have considered the parties'
cross-motions for summary judgment and the related filings.
[ECF Nos. 12, 15, 16]. I find that no hearing is necessary.
See Loc. R. 105.6 (D. Md. 2016). This Court must
uphold the decision of the Agency if it is supported by
substantial evidence and if the Agency employed proper legal
standards. See 42 U.S.C. §§ 405(g),
1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th
Cir. 1996). Under that standard, I recommend that the Court
deny both motions, reverse the judgment of the Commissioner,
and remand the case to the Commissioner for further analysis
pursuant to sentence four of 42 U.S.C. § 405(g).
Lepus-McCardell filed her claim for Disability Insurance
Benefits on April 29, 2013, alleging a disability onset date
of January 1, 2009. (Tr. 135). Her claim was denied initially
and on reconsideration. (Tr. 61-69, 70-82). A hearing was
held on December 16, 2015, before an Administrative Law Judge
(“ALJ”). (Tr. 27-60). Following the hearing, the
ALJ determined that Ms. Lepus-McCardell was not disabled
within the meaning of the Social Security Act during the
relevant time frame. (Tr. 12-26). The Appeals Council denied
Ms. Lepus-McCardell's request for review, (Tr. 1-5), so
the ALJ's decision constitutes the final, reviewable
decision of the Agency.
found that Ms. Lepus-McCardell suffered from the severe
impairments of “diabetes with diabetic neuropathy and
obesity.” (Tr. 17). Despite these impairments, the ALJ
determined that Ms. Lepus-McCardell retained the residual
functional capacity (“RFC”) to “perform
light work as defined in 20 CFR 404.1567(b) except no
climbing of ladders, ropes, or scaffolds; occasional climbing
of stairs or ramps; frequent stooping, crouching, crawling,
or kneeling.” (Tr. 19). After considering the testimony
of a vocational expert (“VE”), the ALJ determined
that Ms. Lepus-McCardell was capable of performing her past
relevant work as a Healthcare Facility Administrator, and
that, therefore, she was not disabled. (Tr. 21).
Lepus-McCardell raises two arguments on appeal, specifically
that the ALJ erroneously: (1) determined that her mental
impairment (depression) was not severe, Pl.'s Mem., 5-8;
and (2) failed to consider her depression when assessing her
RFC, id. at 8-11. Ms. Lepus-McCardell's first
argument is dispositive.
Lepus-McCardell first argues that the ALJ erred at step two
of the sequential evaluation by concluding that her mental
impairment of depression was not “severe.”
Id. at 5-8. A “severe” impairment is one
“which significantly limits [a claimant's] physical
or mental ability to do basic work activities.” 20
C.F.R. § 404.1520(c). Thus, an impairment, or
combination of impairments, is not “severe” if it
does not “significantly limit [a claimant's]
physical or mental ability to do basic work
activities.” Id. Importantly, diagnosis of a
specific impairment alone is insufficient to demonstrate that
it is severe; instead, “there must be a showing of
related functional loss.” Gross v. Heckler,
785 F.2d 1163, 1166 (4th Cir. 1986) (citation omitted).
Ms. Lepus-McCardell contends that “the only medical
opinions of record demonstrate that [she] had . . . a severe
mental impairment” and that, “[i]n finding no
severe mental impairment, the ALJ substituted her own lay
judgment for the findings of the only two mental health
professionals to either examine [her] or review the evidence
of record.” Pl.'s Mem., 5-6. Specifically, Ms.
Lepus-McCardell relies upon the opinions of Drs. Nicola
Cascella and Theodore Weber. Id. In November 2013,
Dr. Cascella psychiatrically evaluated Ms. Lepus-McCardell,
diagnosed her with major depressive order, and gave her a
Global Assessment of Functioning (“GAF”) score of
55, which indicates moderate impairment in functioning due to
mental health conditions. (Tr. 17-18). In December 2013, Dr.
Weber, a State agency reviewing psychologist, reviewed the
evidence of record, including Dr. Cascella's opinion, and
opined that Ms. Lepus-McCardell suffered from severe
affective disorders that caused mild restriction in
activities of daily living, mild difficulties in social
functioning, and moderate difficulties in concentration,
persistence, and pace. Id. at 18.
that there is not substantial evidence to support the
ALJ's conclusion that Ms. Lepus-McCardell's
depression was nonsevere. Employing the “special
technique” set forth by 20 C.F.R. § 404.1520a, the
ALJ found that Ms. Lepus-McCardell had no restriction in
daily living activities, only mild restriction in both social
functioning and concentration, persistence, or pace, and no
episodes of decompensation of extended duration. (Tr. 18). In
reaching her conclusion, the ALJ discussed the opinions of
Drs. Cascella and Weber, however, accorded them “little
weight, ” because she believed that they were
unsupported by the evidence of the record and based
“primarily” on Ms. Lepus-McCardell's
subjective complaints. Id. Specifically, the ALJ
relied heavily upon the fact that Ms. Lepus-McCardell did not
report (nor did the record otherwise demonstrate) any
psychiatric or mental health treatment history. See
(Tr. 17) (“The claimant did not report any psychiatric
treatment history[.]”); (Tr. 18) (“I give little
weight to Dr. Cascella's opinion because the evidence of
record does not demonstrate the claimant has received any
mental health treatment.”); id. (“While
the claimant testified that her concentration and memory has
decreased, she has not treated with a mental health
specialist for her alleged impairments.”). Thus, in
light of a non-existent history of mental health treatment,
and the fact that the ALJ considered Dr. Cascella's
assigned GAF score to be merely “a highly subjective
and non-standardized measure of symptom severity that
captures an individual's level of functioning . . . only
at the time of evaluation, ” the ALJ found Dr.
Cascella's opinion unpersuasive. Then, because, Dr. Weber
did not evaluate or treat Ms. Lepus-McCardell, but merely
based his opinion “almost exclusively on Dr.
Cascella's evaluation, ” the ALJ also found his
opinion unpersuasive. Id.
that the ALJ's analysis is flawed, because Ms.
Lepus-McCardell's lack of mental health treatment by a
specialist, alone, does not provide substantial evidence that
her impairment was nonsevere. Importantly, Social Security
Administration (“SSA”) Ruling 16-3p, effective
March 28, 2016, clarified 20 C.F.R. § 404.1529, which
provides that the SSA “will carefully consider”
the information it has about the claimant's symptoms,
including information about medications and
treatments. Jones v. Colvin, No. 15 C 11310,
2016 WL 4798956, at *5 (N.D. Ill. Sept. 14, 2016) (citing SSR
16-3p, 2016 WL 1119029 at *1 (effective March 28, 2016)).
Prior to SSR 16-3p, an ALJ could “not draw any
inferences about a claimant's condition from a failure to
pursue or comply with treatment unless the ALJ ha[d] explored
the claimant's explanations as to the lack of medical
care.” Id. (quoting Moss v. Astrue,
555 F.3d 556, 562 (7th Cir. 2009)) (internal quotation marks
omitted). Similarly, post SSR 16-3p, the SSA “may not
use the failure to pursue treatment as a reason for
discounting an individual's claims regarding symptom
intensity, persistence, and limiting effects
‘without considering possible reasons he or she may
not . . . seek treatment consistent with the degree of his or
her complaints.'” Id. (quoting SSR
16-3p, 2016 WL 1119029 at *8) (emphasis added). The ALJ may
inquire into possible reasons for forgoing treatment, such as
a claimant's inability to afford treatment and her lack
of access to free or low-cost medical services. SSR 16-3p,
2016 WL 1119029 at *9 (providing a non-exhaustive list of
reasons for why a claimant may not seek treatment). Here, the
ALJ failed to sufficiently consider possible reasons why Ms.
Lepus-McCardell did not pursue mental health treatment.
Instead, the ALJ merely attempted to determine whether Ms.
Lepus-McCardell sought such treatment. (Tr. 37) (Q:
“[H]ave you gone to a mental health professional . . .
.” A: “I think here [sic] sent me to
one.”); (Tr. 38) (Q: “Has [your primary care
physician] ever recommend you go see a mental health
professional?” A: “No.”). In fact, the ALJ
cut off the only answer in which Ms. Lepus-McCardell may have
explained her treatment decision. (Tr. 37-38) (Q: “Have
you treated with [a mental health professional]?” A:
“No. I'm happy in my little --”). As such,
the ALJ's reliance on Ms. Lepus-McCardell's lack of
mental health history did not provide her with substantial
evidence to conclude that Ms. Lepus-McCardell's
depression was nonsevere. The determination regarding
severity is critical in this case in light of the highly
skilled nature of Ms. Lepus-McCardell's past relevant
work. Any significant mental limitations could impact her
ability to serve in the capacity. Accordingly, I recommend
remand for the ALJ to appropriately consider Ms.
Lepus-McCardell's treatment history within the framework
of SSR 16-3p. In so recommending, I express no opinion
regarding whether the ALJ's ultimate conclusion that Ms.
Lepus-McCardell is not entitled to benefits is correct.
reasons set forth above, I respectfully recommend that:
1. the Court DENY Defendant's Motion for Summary Judgment
[ECF No. 12];
2. the Court DENY Plaintiff's Motion for Summary Judgment