WILLIAM CONNELLY, 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.
On January 19, 2012
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 nonsevere. R. at 14. The ALJ elaborated on her finding.
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.
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).
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,
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
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.
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 the hypothetical question presented to the VE. These issues are addressed below.
Plaintiff contends the ALJ erred at step two by finding Mr. Lemay's depression and anxiety non-severe. Plaintiff asserts the medical evidence clearly establishes Mr. Lemay's mental impairments meet the low threshold of severe impairments at step two. The undersigned has summarized the ALJ's determination concerning Mr. Lemay's mental impairments supra.
Mr. Lemay's treating psychiatrist, Jay S. Harkhani, M.D., completed a Mental Capacity Assessment form on November 21, 2012. R. at 556-58. Dr. Harkhani began treating Mr. Lemay on September 24, 2012. R. at 552-55, 558. As reflected on the Mental Capacity Assessment form Dr. Harkhani opined Mr. Lemay has moderate
A review of Dr. Harkhani's evaluation and progress notes appears inconsistent with the opinion expressed on the Mental Capacity Assessment form.
After Dr. Harkhani's initial evaluation of September 24, 2012, every subsequent progress note reflected that Mr. Lemay's behavior has been stable and uneventful or unremarkable, medication compliance is good, and Mr. Lemay reported no side effects and none are in evidence. See R. at 534, 537, 540, 543, 546, 549. Mr. Lemay showed a partial treatment response to prescribed medication as noted on November 19, 2012. R. at 546. During the January 21, 2013 appointment Mr. Lemay reported improvement and stated he has done well the previous two months. R. at 543. Mr. Lemay did not see Dr. Harkhani for an eight month period. He continued to take Lamictal during this period. Although Mr. Lemay reported being anxious, sad and depressed after a recent bypass surgery, he informed Dr. Harkhani that sleep has been good and the absence of any manic symptoms. R. at 540. During his last two sessions with Dr. Harkhani, Mr. Lemay reported improvement. R. at 534, 537. The ALJ appropriately assigned "little weight" to Dr. Harkhani's opinion as reflected on the Mental Capacity Assessment form "because it is contradicted by the treatment notes, which document that the claimant's symptoms are improved and that he is stable on medication." R. at 20 (citations omitted).
Mr. Lemay obtained medical assistance for his mental impairments before seeing Dr. Harkhani, starting in July of 2011. Mr. Lemay initially sought treatment from Khalid Ahmed, M.D., a psychiatrist. Dr. Ahmed assessed Mr. Lemay with a Global Assessment of Functioning ("GAF") score of 51 in August 2011 and 50 in October 2011. R. at 300-01. The ALJ assigned great weight to Dr. Ahmed's opinions.
R. at 20 (citations omitted).
Furthermore, during a May 24, 2012 session with the Mental Health Clinic of a Veterans Affairs ("VA") Medical Center, Mr. Lemay disclosed an outside or non-military psychiatrist prescribed several drugs for his bipolar disorder including Lamictal, Buspar, Trazadone and Ativan. "Veteran said he is doing much better since taking the meds and does not feel down or sad." R. at 324. Also during a March 27, 2014 session at a VA Mental Health Clinic, Mr. Lemay reported his mood being fairly stable while taking prescribed medications. R. at 568. In summary, the "[m]ental health treatment notes indicate that the claimant's condition is stable on medication and that his symptoms significantly improved." R. at 18 (citations omitted). The undersigned finds no error as alleged by Plaintiff.
Steven Hearne, M.D. is Mr. Lemay's treating cardiologist. Dr. Hearne began treating Mr. Lemay on June 15, 2011. R. at 288-89. Over two years later, on October 11, 2013, Dr. Hearne completed a Cardiac Medical Source Statement form. R. at 559-62. Mr. Lemay has coronary artery disease. Dr. Hearne opined Mr. Lemay's prognosis is life long, ICD
Id. The Cardiac Medical Source Statement form inquired, if your patient has angina, describe the nature, location and radiation of symptoms. Dr. Hearne wrote, "chest pain and shortness of breath." The form then asked, how often do angina episodes typically occur? Dr. Hearne wrote, "often, daily." Dr. Hearne, in response to another questions about angina, opined Mr. Lemay must rest "1-2 hours" after an episode of angina. Id.
In completing page two of the Cardiac Medical Source Statement form, Dr. Hearne opined Mr. Lemay is incapable of tolerating even low stress work, can stand/walk less than 2 hours, can sit at least 6 hours, needs a job which permits Mr. Lemay to shift positions at will from sitting, standing or walking, and that Mr. Lemay would need to take 1 to 2 unscheduled breaks, 5 to 10 minutes in duration, per day. R. at 560.
Dr. Hearne opined Mr. Lemay can rarely lift and carry less than 10 pounds in a competitive work situation. Dr. Hearne further opined Mr. Lemay can never lift and carry 10 pounds, 20 pounds and 50 pounds. In addressing other subjects on the third page of the Cardiac Medical Source Statement form, Dr. Hearne asserted Mr. Lemay can occasionally twist, stoop (bend) and crouch/squat; Mr. Lemay can rarely climb stairs and Mr. Lemay can never climb ladders. With regard to environmental restrictions, Dr. Hearne declared Mr. Lemay had no restrictions as to extreme cold, wetness or cigarette smoke. Mr. Lemay must however avoid concentrated exposure to extreme heat, high humidity, perfumes, soldering fluxes, solvent/cleaners, fumes, odors, gases, dust and chemicals. R. at 561.
On the final page of the Cardiac Medical Source Statement form, Dr. Hearne opined Mr. Lemay would likely be "off task" 10 percent on a typical workday due to the severity of his coronary artery disease interfering with Mr. Lemay's attention and concentration needed to perform even simple work. Dr. Hearne further declared Mr. Lemay's impairment would produce "good days" and "bad days." Mr. Lemay's impairment would cause him to be absent from work about one day per month. Finally, Dr. Hearne wrote Mr. Lemay has cardiomyopathy and will be treated with an ICD placement. R. at 562.
The ALJ considered this opinion of Dr. Hearne and "afford[ed] little weight to this opinion, which is contradicted by the cardiology treatment notes, which fail to document that the claimant is as limited as Dr. Hearne opines and note improvements in the claimant's condition." R. at 20 (citations omitted). Plaintiff argues the ALJ's reasoning is legally insufficient. Specifically Plaintiff claims, "it is insufficient for the ALJ to merely conclude that the `medical evidence' fails to support a treating physician's opinions. Specific reasoning `supported by the evidence in the case record' must be given by the ALJ in explaining the weight given to a treating physician's opinion." ECF No. 14-1 at 8 (citation omitted).
According to the Social Security Regulations, generally more weight is given to the opinions from treating sources "since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). A treating source's opinion however is not automatically entitled to controlling weight. To be accorded this weight, the treating source's opinion concerning the nature and severity of a claimant's impairment must be "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and must not be "inconsistent with the other substantial evidence in [a claimant's] case record. . . ." Id. If a treating source's opinion is not entitled to controlling weight, the ALJ must consider (a) the length of the treatment relationship and the frequency of the examination, (b) the nature and extent of the treatment relationship, (c) supportability, (d) consistency, (e) specialization and (f) other factors in determining what weight to assign to the treating source's opinion. See id. §§ 404.1527(c)(2)(i) — (c)(6), 416.927(c)(2)(i) — (c)(6).
A review of the office visit records generated by Dr. Hearne's practice explains why the ALJ accorded little weight to the October 2013 opinion expressed via the Cardiac Medical Source Statement form. For instance, Dr. Hearne checked syncope
Prior to Dr. Hearne's October 2013 opinion, Mr. Lemay reported shortness of breath during the May 13, 2013 visit, R. at 443, 444, and the September 20, 2013 visit, R. at 440 ("He continues to have SOB, however, this is not on a regular basis."). Dr. Hearne reported anginal symptoms or angina on one visit, April 12, 2013, R. at 451-52, and a subsequent admission to the hospital on April 16, 2013, R. at 448. Since Dr. Hearne identified Mr. Lemay as having angina on the Cardiac Medical Source Statement form, Dr. Hearne listed chest pain and shortness of breath as symptoms of Mr. Lemay's angina. Dr. Hearne stated Mr. Lemay experienced these symptoms "often, daily." Dr. Hearne's own treatment notes do not support this characterization. Further, Dr. Hearne's October 2013 opinion noted Mr. Lemay experiences chronic fatigue. This condition was noted infrequently. See R. at 416
Dr. Hearne opined about Mr. Lemay's extreme limitation in lifting and carrying. However less than a month after Mr. Lemay's left heart catheterization with percutaneous coronary intervention on April 16, 2013, Dr. Hearne recorded on May 13, 2013, "Patient is doing too much heavy activity such as moving cinder blocks and a wheelbarrow. He is also been building a barn loft. I've explained to him with the degree of cardiomyopathy that he has it is dangerous to do heavy activity." R. at 443. During this same visit Dr. Hearne also recorded Mr. Lemay continues to smoke (he had quit earlier as recommended) and Mr. Lemay's failure to start taking Lipitor, an atorvastatin medication prescribed. Id. Subsequent to October 2013, Mr. Lemay traveled to London for a week's vacation. See R. at 420.
The medical records also document the benefits of medication. For instance, on February 13, 2013 Dr. Hearne wrote, "[Mr. Lemay] had some chest pain with radiation into the arm, however, this resolved with taking nitroglycerin . . . He otherwise has been feeling very well. He denies any chest pain, pressure, tightness or SOB." R. at 454.
After the ICD was implanted, Mr. Lemay was seen by Dr. Hearne's office on October 21, 2013. "[Mr. Lemay] is doing well. He is eager to resume previous functions including sexual relations. [H]e states he is free of cardiac complaints and has not required use of any nitroglycerine recently." R. at 428. This same office note recorded that Mr. Lemay has resumed smoking and is taking his statin (atorvastatin) inconsistently. Id.
One of the most recent medical assessments occurred on March 24, 2014 at a VA clinic. Mr. Lemay's ischemic cardiomyopathy, since the implantation of the ICD, revealed no congestive heart failure manifestations and an ejection fraction
The ALJ summarized Dr. Hearne's treatment notes, R. at 17, 19, and other medical evidence documenting Mr. Lemay's cardiac symptoms, R. at 18. Substantial evidence supports the ALJ assigning "little weight" to Dr. Hearne's October 11, 2013 opinion.
Plaintiff contends the ALJ's hypothetical question to the VE was legally insufficient because the ALJ omitted any reference to Mr. Lemay's mental limitations. The undersigned finds no error because the ALJ found Mr. Lemay's mental impairments non-severe at step two. By definition a non-severe impairment means an impairment that does not significantly limit a claimant's mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). The hypothetical question was based on Mr. Lemay's RFC which did not include any limitation attributable to any mental impairment. See Gerbrick v. Comm'r of Soc. Sec. Admin., No. SAG-13-1881, 2014 WL 4826158, at *2 (D. Md. Sept. 22, 2014) (ALJ "need only pose [hypothetical questions] that are based on substantial evidence and accurately reflect a claimant's limitations").
Substantial evidence supports the decision that Mr. Lemay is not disabled. Accordingly, 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.
R. at 68-69.
