Lepus-Mccardell v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATIONS re 12 and 15 MOTION'S for Summary Judgment. Signed by Magistrate Judge Stephanie A Gallagher on 4/17/2018. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
VICKI Y. LEPUS-MCCARDELL,

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Plaintiff,
v.
COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,1
Defendant.
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Civil Case No.: MJG-17-1894

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REPORT AND RECOMMENDATIONS
The 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).

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Currently, the position of Commissioner of the Social Security Administration is vacant, and most duties are
fulfilled by Nancy A. Berryhill, Deputy Commissioner for Operations, performing the duties and functions not
reserved to the Commissioner of Social Security.

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Ms. 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.
The ALJ 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).
Ms. 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. LepusMcCardell’s first argument is dispositive.
DISCUSSION
Ms. 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.

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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).
Here, 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. LepusMcCardell, 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.
I agree 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

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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.
I find 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

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medications and treatments.2 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. LepusMcCardell 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.
“Though SSR 16-3p post-dates the ALJ hearing in this case, the application of a new policy to matters
on appeal is appropriate where, as here, the new ruling is a clarification of, rather than a change to,
existing law. Jones, 2016 WL 4798956, at *4 (citing Pope v. Shalala, 998 F.2d 473, 482-483 (7th Cir.
1993) (overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999)); see also Dorsey v.
TGT Consulting, LLC, 888 F. Supp. 2d 670, 684 n.10 (D. Md. 2012) (“A rule simply clarifying an
unsettled or confusing area of the law . . . does not change the law, but restates what the law according to
the agency is and always has been.” (quoting Whiting v. Johns Hopkins Hosp., 680 F. Supp. 2d 750, 754
n.4 (D. Md. 2010)).
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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.3

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.
CONCLUSION
For the 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 [ECF No. 15];
3. the Court REVERSE IN PART due to inadequate analysis the Commissioner’s
judgment pursuant to sentence four of 42 U.S.C. § 405(g);
4. the Court REMAND this case for further proceedings in accordance with this
opinion; and
5. the Court close this case.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Federal Rule of Civil Procedure 72(b) and Local Rule 301.5(b).
NOTICE TO PARTIES

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Because this case is being remanded on other grounds, on remand, the ALJ should amend the RFC
assessment as necessary and should ensure that, per SSA regulations, her or she “consider[s] all of [the
claimant’s] medically determinable impairments . . . including . . . [those] that are not ‘severe[.]’” See 20
C.F.R. § 404.1545.

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Failure to file written objections to the proposed findings, conclusions, and
recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.

Dated: April 17, 2018

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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