UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Roland G. Tarr
v. Case No. 17-cv-731-PB Opinion No. 2019 DNH 032 Nancy A. Berryhill, Acting Commissioner, Social Security Administration
O R D E R
Roland G. Tarr seeks review, pursuant to 42 U.S.C. § 405(g)
and § 1383(c)(3), of the Acting Commissioner’s decision that
denied his applications for social security disability benefits
under Title II and supplemental security income under Title XVI.
Tarr moves to reverse the decision on the grounds that the
Administrative Law Judge (“ALJ”) did not evaluate his mental
impairments properly and erred in weighing the medical opinion
evidence. The Acting Commissioner moves to affirm, contending
that there were no errors and that substantial evidence supports
the decision.
I. Standard of Review
Judicial review under § 405(g) “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.” Nguyen v. Chater,
172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001). The court decides legal issues de
novo but defers to the ALJ’s factual findings if they are
supported by substantial evidence. Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). Substantial evidence is
“more than a scintilla of evidence” but less than a
preponderance. Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir.
2018). The court must affirm the ALJ’s findings, even if the
record could support a different conclusion, when “a reasonable
mind, reviewing the evidence in the record as a whole, could
accept it as adequate to support [the ALJ’s] conclusion.”
Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991) (internal quotation marks omitted); accord
Purdy, 887 F.3d at 13.
II. Background
Tarr was born in 1988 and was twenty-six years old when he
applied for benefits. During the hearing, Tarr testified about
his learning and behavior difficulties, which began in his
childhood. He attended special education classes and then
received residential treatment at “Wediko”. Tarr believes that
special education services were necessary because of his
learning and comprehension problems, including attention deficit
and hyperactivity disorder (“ADHD”). He graduated from high
school when he was twenty.
Tarr and his mother testified that he has suffered from
depression and ADHD as an adult. As a result, he had difficulty
functioning in the jobs that he tried. Tarr lives with his
girlfriend and their two children. Tarr is able to care for the
2 children and do some household chores. Tarr was taking Adderal
and Celexa at the time of the hearing.
A. Treatment History
Tarr sought treatment with Kathryn Scoville, ARNP, for his
ADHD, anxiety, and depression symptoms beginning in February of
2015. As part of the physical examination, ARNP Scoville noted
that Tarr’s judgment, insight, mood, orientation and affect were
all normal and that his memory was intact. ARNP Scoville wrote
that she hoped Adderall would help Tarr function better at home
and in the work force. An examination in April of 2015 also
produced normal results.
In May of 2012, Tarr was evaluated by Evelyn Harriott,
Ed.D., before Tarr’s disability onset date. Gregory Korgeski,
Ph.D. did a consultative psychological examination on April 13,
2015. On April 23, 2015, Laura Landerman, Ph.D., completed a
Psychiatric Review Technique Form as a non-examining state
agency consultant. Elizabth Sayre, a Human Resources Manager
with the City of Keene, provided a statement dated October 6,
2016, about Tarr’s background based on her services to Tarr and
his mother since Tarr was a toddler.
Tarr had weekly therapy sessions with Jessica Howard, BA,
at Monadnock Family Services, between October 4, 2016, and
3 December 27, 2016. 1 Howard completed a Medical Source Statement
on January 3, 2016.
B. Procedural History
Tarr applied for benefits on October 31, 2014, and later
amended his onset of disability date to December 31, 2014. He
claimed disability due to affective disorder, ADHD, anxiety
disorders, learning disorder, chronic headaches, and left writs
arthritis. A hearing was held before an ALJ on February 14,
2017. Tarr testified, with an appointed representative, and his
mother testified. A vocational expert and two medical experts
also testified. One of the medical experts was Alfred Jonas,
M.D., a non-examining psychiatric consultant.
The ALJ found that Tarr was not disabled at Step Five. 2 In
support, the ALJ found at Step Two that Tarr had medically
determinable severe impairments due to left wrist impairment and
headaches but did not find severe mental impairments. She
assessed a residual functional capacity to perform light work
with certain physical, postural, and environmental restrictions.
1 Howard signs her name as “Jessica Howard BA.” In the paperwork, she is identified as “ACT MENTAL HEALTH PROFESSIONAL II.”
2 In determining whether a claimant is disabled for purposes of social security benefits, the ALJ follows a five-step sequential analysis. 20 C.F.R. § 404.1520 & § 416.920. The claimant bears the burden through the first four steps of proving that his impairments preclude him from working. Purdy, 887 F.3d at 9. At the fifth step, the Acting Commissioner has the burden of showing that jobs exist which the claimant can do. Heggarty v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991).
4 She also restricted Tarr to unskilled work that involved routine
and simple instructions, no fast-paced work, and no more than
occasional interaction with the public. Based on the vocational
expert’s testimony, the ALJ found that Tarr could work in
occupations such as a housekeeper/cleaner and a laundry sorter.
The Appeals Council denied Tarr’s request for review.
III. Discussion
ALJ failed to find severe medically determinable mental
impairments at Step Two and then failed to consider Tarr’s
mental impairments in assessing his residual functional
capacity. Tarr contends that the ALJ did not properly weigh the
medical evidence and other evidence in the record, which, he
argues, shows that he had severe medically determinable mental
impairments. The Acting Commissioner moves to affirm, arguing
that the ALJ properly considered the evidence in the record,
appropriately relied on medical opinions, and correctly assessed
Tarr’s residual functional capacity.
A. Step Two
At Step Two, the ALJ must determine whether the claimant
has “a severe medically determinable physical or mental
impairment that meets the duration requirement . . . or a
combination of impairments that is severe and meets the duration
5 requirement.” § 404.1520(a)(4)(ii). 3 To be medically
determinable, a severe mental impairment “must result from . . .
psychological abnormalities that can be shown by medically
acceptable clinical and laboratory diagnostic techniques.” 20
C.F.R. § 404.1521. That is, a “mental impairment must be
established by objective medical evidence from an acceptable
medical source” but cannot be established by the claimant’s
“statement of symptoms, a diagnosis, or a medical opinion.” Id.
Step Two imposes a threshold evaluation that is intended to
screen out groundless claims where the medical evidence shows
only abnormalities or impairments that “‘would have no more than
a minimal effect on an individual’s ability to work.’” McDonald
v. Sec’y of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir.
1986) (quoting SSR 85-28). If the ALJ finds at least one severe
impairment at Step Two, the analysis progresses on through the
steps as may be necessary. For that reason, any error in
failing to find additional impairments at Step Two is not
grounds for reversal as long as the ALJ properly assesses the
claimant’s residual functional capacity in light of all of the
3 Because the regulations implementing the standard for disability under Title II (§ 404.1520 - § 404.1530) and under Title XVI (§ 416.920 - § 416.930) are the same, the court will cite the Title II regulations. See Sullivan v. Zebley, 493 U.S. 521, 525, n.3 (1990).
6 claimant’s impairments later in the analysis. 4 Lavoie v.
Berryhill, 2018 WL 922140, at *4-*5 (D.N.H. Feb. 16, 2018).
In this case, the ALJ found severe physical impairments due
to left wrist impairment and headaches. The ALJ acknowledged
that the record showed that Tarr also had mental impairments,
including anxiety, but found that those impairments did not
cause more than minimal limitations in Tarr’s ability to perform
“basic mental work activities.” Doc. 7-2, at *17. The ALJ
explained that his finding was based on opinions provided by Dr.
Jonas and Dr. Korgeski, the lack of evidence in the medical
record showing mental abnormalities, Tarr’s treatment history
which showed improvement through medication, and Tarr’s own
statements about his activities. Despite the Step Two findings,
the ALJ considered Tarr’s mental impairments in the context of
assessing his residual functional capacity and added limitations
to address those impairments, as is addressed below. 5
4 Although Tarr faults the ALJ for failing to find severe mental impairments at Step Two, he acknowledges that if an error occurred it was harmless.
5 To the extent Tarr argues that the ALJ improperly conflated the Step Two finding with the residual functional capacity assessment and focused too heavily on objective medical evidence, he is mistaken. Tarr cites no authority that requires an ALJ to repeat the evaluation of the record evidence at different steps of the analysis. The ALJ complied with both standards, which is demonstrated by the different findings at Step Two and later in assessing residual functional capacity.
7 B. Opinion Evidence
Tarr contends that the ALJ erred in failing to properly
consider and weigh the medical opinions pertaining to his mental
impairments. Specifically, Tarr argues that the ALJ should have
found severe mental impairments, including a severe anxiety
disorder, based on opinions provided by Dr. Harriott, Dr.
Korgeski, Dr. Landerman, and Jessica Howard, BA. Tarr further
contends that the ALJ erred in relying on the opinion provided
by Dr. Jonas. The Acting Commissioner contends that the ALJ
properly evaluated the medical opinion evidence.
“Medical opinions are statements from acceptable medical
sources that reflect judgments about the nature and severity of
[a claimant’s] impairment(s), including [his] symptoms,
diagnosis and prognosis, what [he] can still do despite
impairment(s), and [his] physical or mental restrictions.” 20
C.F.R. § 404.1527(a)(1). “Acceptable medical source,” as used
in the regulation, includes licensed physicians and licensed or
certified psychologists but does not include licensed counselors
or clinicians. 6 20 C.F.R. § 404.1502(a); Vorce v. Berryhill,
6 The regulations distinguish between “acceptable medical sources” and those who are not acceptable medical sources because only acceptable medical sources can establish a medically determinable impairment, give medical opinions, and be considered as treating sources. Considering Opinions and Other Evidence from Sources Who Are Not “Acceptable Medical Sources” in Disability Claims, Social Security Ruling 06-03, 1006 WL 2329939, at *2 (Aug. 9, 2006). Opinions from sources who are not acceptable medical sources may provide evidence about the
8 2018 WL 3854786, at *6 (D.N.H. Aug. 14, 2018). Opinions from
medical sources who are not acceptable medical sources and from
nonmedical sources are also considered and weighed using the
same criteria that apply to acceptable medical sources but the
weight of the opinion depends on the particular facts in each
case. § 404.1527(f).
Medical opinions are evaluated based upon the nature of the
medical source’s relationship with the claimant, the extent to
which the source provides evidence to support the opinion, the
extent the opinion is consistent with other evidence in the
record, the specialization of the medical source, and other
factors including the source’s understanding of the social
security system. § 404.1527(c). In general, an ALJ will give
more weight to the opinion of a treating source and may give
that opinion controlling weight if it is well supported and not
inconsistent with other medical evidence in the record.
§ 404.1527(c)(2). The ALJ is required to give “good reasons” in
the disability decision for the weight given to treating source
opinions. Id.
1. Dr. Jonas
Dr. Jonas is a psychiatrist who testified at the hearing by
telephone as a non-examining consultant based on his review of
Tarr’s record. Dr. Jonas testified that the record was unclear
severity of the claimant’s impairments and how the impairments affect his ability to function. Id.
9 as to what diagnoses had been made for Tarr. He noted that the
record showed normal cognitive functioning on examinations done
in May of 2012 and April of 2015.
He said the record did not show that Tarr had functional
impairments in his ability to interact with people in an
evaluation setting. Based on the results in the record, Dr.
Jonas concluded that Tarr probably had no impairment or possibly
had only a mild impairment. Specifically, Dr. Jonas testified
that the record showed no impairment in appropriate social
functioning and in Tarr’s ability to adapt and adjust to various
settings. Dr. Jonas explained that if depression were causing
difficulties for Tarr, he would be prescribed a higher dose of
Celexa. Dr. Jonas concluded that Tarr did not meet or equal a
listed impairment.
In response to the ALJ’s questions, Dr. Jonas again said
that it was not clear Tarr had any functional impairments and
that no restrictions were necessary. He explained that the
record did not support the level of functional difficulty that
Tarr described in his testimony or that some opinions suggested.
The ALJ gave Dr. Jonas’s opinions great weight. The ALJ
acknowledged that the opinion of a non-examining source
generally is entitled to less weight than opinions of examining
sources. Nevertheless, the ALJ considered the other criteria in
§ 404.1527(c), as she was required to do. The ALJ found it
important that Dr. Jonas is a psychiatrist, he reviewed all of
10 the evidence in the record, and the the objective evidence in
the record supported the opinion.
Tarr contends that was error because Dr. Jonas limited his
opinion to objective evidence in the record and because his
opinion was different from the other opinions. Tarr cites no
authority that prohibits an ALJ from giving great weight to a
medical expert’s opinion simply because the expert bases his
opinion exclusively on objective evidence.
Tarr also cites no authority that precludes reliance on a
medical opinion that differs from other opinion evidence in the
record. Instead, an ALJ is required to assess medical opinions
in light of the criteria provided in § 404.1527(c). The ALJ in
this case did exactly that. Therefore, Tarr has shown no error
in the weight the ALJ gave to Dr. Jonas’s opinion.
2. Dr. Korgeski
Following a consultative evaluation of Tarr, Dr. Korgeski
listed chronic depressive disorder, ADHD, unspecified anxiety
disorder, reading comprehension learning disability, features of
dependent personality disorder, and Tarr’s reports of physical
conditions under the title “DIAGNOSTIC IMPRESSIONS.” Based on
his testing, Dr. Korgeski found that Tarr had the ability to
perform the activities of daily living, could interact
appropriately with others except that he could not manage public
contact well, could understand and remember work-like
procedures, could understand and remember very short and simple
11 instructions, could concentrate and complete tasks that would
allow some variety (such as landscaping or janitorial work) with
minimal competitive requirements, and could tolerate stress in a
work environment. The ALJ gave Dr. Korgeski’s opinion
significant weight.
Tarr argues that the ALJ should have focused more on some
of the testing results rather than Dr. Korgeski’s opinion and
that the ALJ did not incorporate all parts of the opinion into
the residual functional capacity finding. Tarr does not argue
that the ALJ improperly weighed Dr. Korgeski’s opinion but only
that the ALJ should have found severe medically determinable
impairments at Step Two, based on the opinion, and should have
formed a more restrictive residual functional capacity. Those
arguments do not undermine the weight given to the opinion.
3. Dr. Landerman
Dr. Landerman completed a Psychiatric Review Technique Form
as a non-examining state agency consultant in April of 2015.
Dr. Landerman found that he had moderate difficulties with daily
activities, social functioning, and concentration, persistence,
and pace. She found that Tarr could understand, recall, and
carry out short and simple instructions at an acceptable pace
for a full-time work schedule.
The ALJ gave Dr. Landerman’s opinion of moderate
limitations little weight because “she neither examined the
claimant nor based her opinion on the most recent evidence of
12 record.” Doc. 7-1, at *20. Instead, the ALJ found Dr. Jonas’s
opinion superior because it was based on the updated record.
Dr. Jonas testified that he did not agree with Dr. Landerman’s
opinion that Tarr had moderate limitations in his functional
ability because the evaluations in the record, in which Tarr
could function and respond appropriately, contradicted Dr.
Landerman’s reported limitations.
Tarr argues that the ALJ erred in failing to provide “good
reasons” for the weight given Dr. Landerman’s opinion because
her opinion was more consistent with other opinions in the
record and because Dr. Jonas was also not an examining source.
As the Acting Commissioner points out, Dr. Landerman was not a
treating source, and, therefore, the ALJ was not required to
give “good reasons” for the weight given to her opinion.
Further, the ALJ relied on Dr. Jonas’s opinion and his review of
a more complete record. Tarr has shown no error in the ALJ’s
consideration of Dr. Landerman’s opinion.
4. Jessica Howard, BA
Jessica Howard, who is identified as a mental health
technician, completed a Medical Source Statement on January 3,
2016, in which she listed diagnoses of a major depressive
disorder and ADHD and listed symptoms Tarr reported. Howard
found that Tarr was limited most of the time in his ability to
tolerate stress at work and to accept instructions and
criticism, and was limited a third of the time in his ability to
13 complete tasks, maintain functioning, remember instructions, and
perform at a consistent pace. She also stated that he would be
absent more than four days each month.
The ALJ noted Howard’s brief treating relationship with
Tarr for a four-month period and concluded that it was not long
enough to give Howard a longitudinal picture of Tarr’s
condition. The ALJ also noted that Howard was not an acceptable
medical source, for purposes of providing a diagnosis of a
medically determinable impairment. The ALJ did consider the
opinion with respect to the severity of Tarr’s impairments and
the effects on his functional capacity.
Tarr again faults the ALJ for failing to provide a “good
reason” for giving Howard’s opinion little weight. Because
Howard is not an acceptable medical source, however, the ALJ was
not required to provide a good reason. Boyde v. Berryhill, 2018
WL 2187370, at *7 (D. Mass. May 11, 2018). The ALJ was only
required to consider Howard’s Statement as part of the record,
which she did. Therefore, Tarr has shown no error.
5. Dr. Harriott
Dr. Harriott, a state agency consultant, evaluated Tarr in
May of 2012, two and a half years before Tarr’s amended onset
date. As such, Dr. Harriott’s evaluation does not pertain to
the relevant period in this case. Tarr faults the ALJ for
failing to discuss Dr. Harriott’s opinion but does not explain
how that opinion is pertinent to the relevant period.
14 Dr. Jonas reviewed Dr. Harriott’s report as part of the
record. He noted the tests and evaluations in Dr. Harriott’s
report as support for his opinion that Tarr has no mental
impairment that caused functional limitation. Therefore, Dr.
Harriott’s opinion was considered and provided evidence in the
case.
C. Other Evidence
An ALJ is required to consider all relevant evidence in a
claimant’s record. § 404.1527(b). Tarr contends that the ALJ
did not properly consider other evidence in the record,
including the function report and testimony provided by Tarr’s
mother, the statement submitted by Keene Human Services Manager
Elizabeth Sayre, and Tarr’s statements and testimony. In each
instance, however, the ALJ explained the weight given and the
reasons she did not accept those opinions and statements.
The ALJ noted that despite the opinion-like form of Tarr’s
mother’s report, she is not an acceptable medical source. In
addition, the ALJ found that the record as a whole contradicted
the severity of Tarr’s limitations as reported by his mother. 7
The ALJ also noted that Sayre is not an acceptable medical
7 Tarr argues that his mother’s opinion is bolstered by Sayre’s statement and therefore should have been given more weight. The ALJ considered all of the evidence in the record to assess the weight for the statements from Tarr’s mother and Sayre. Taken in that context, the ALJ concluded that Tarr’s mother’s opinions were too extreme and were inconsistent with the record as a whole.
15 source, for purposes of providing a medical opinion, and did not
provide any specifics about Tarr’s limitations. Further, to the
extent Tarr’s mother and Sayre provided opinions that Tarr
cannot work, that is a decision reserved to the Acting
Commissioner. § 404.1527(d)(1). The reasons given are
sufficient to support the ALJ’s evaluation of the evidence.
Tarr faults the ALJ for taking his statements out of
context and overstating the extent of his daily activities. The
ALJ found that Tarr’s statements and allegations of disabling
limitations were contradicted by some of his statements about
his activities, such as caring for his children, using public
transportation, shopping, using a computer, and playing video
games. Although Tarr points to other statements where he
described greater limitations, as the ALJ stated, Tarr’s
statements are not consistent.
As long as the ALJ follows the correct legal principles, it
is the ALJ’s responsibility to draw inferences and resolve
conflicts in the evidence. Irlanda Ortiz, 955 F.2d at 769.
Tarr shows no error in the ALJ’s assessment of the statements
provided by his mother and Sayre and Tarr’s allegations of
disabling limitations.
16 D. Residual Functional Capacity Assessment
Tarr argues that the ALJ erred in failing to assess his
mental limitations and their effects on his functional
abilities. He states that the ALJ provided “virtually no
discussion of the mental impairments after step 2” and that his
mental impairments should have been assessed under the Part B
requirements in the Listing of Impairments. Tarr also
acknowledges, however, that the ALJ did discuss mental
impairments.
Tarr, who is represented by counsel, appears to be relying
on the Step Three standard where the ALJ considers the medical
severity of a claimant’s impairments to determine whether they
meet or equal a listing in Appendix 1, Subpart P. 20 C.F.R. §
404.1520(a)(4)(iii). If the severity of the impairments meets
or equals a listing, then the claimant is disabled, and the
analysis ends. Id. If not, the analysis continues on to Steps
Four and Five where the ALJ does a residual functional capacity
assessment and determines whether the claimant can do his past
work or other work. §§ 404.1520(4)(iv) & (v). The ALJ
addressed Step Three and found that Tarr’s impairments did not
meet or equal a listed impairment. Tarr does not challenge that
finding but instead argues that the listing requirements apply
for assessing residual functional capacity.
In contrast to Step Three, the residual functional capacity
assessment is a finding of the most a claimant can do in a work
17 setting despite his limitations caused by impairments. 20
C.F.R. § 404.1545(a)(1). An ALJ’s assessment is reviewed to
determine whether it is based on proper legal standards and is
supported by substantial evidence. Nguyen, 172 F.3d at 35-36.
An ALJ generally cannot interpret medical data in a claimant’s
record in functional terms. Manso-Pizarro v. Sec’y of Health &
Human Servs., 76 F.3d 15, 17 (1st Cir. 1996). For that reason,
an expert’s functional capacity assessment, generally in the
form of a medical opinion, is necessary to evaluate a claimant’s
work capacities in light of his impairments. Id.; see also
Swain v. Berryhill, 2018 WL 5342714, at *5 (D.N.H. Oct. 29,
2018).
Contrary to Tarr’s argument, the ALJ did address mental
impairments to assess his residual functional capacity. The ALJ
noted that his mental impairments were not severe and referred
to the discussion of impairments at Step Two. The ALJ relied on
the opinions provided by Dr. Jonas and Dr. Korgeski and included
limitations in the functional capacity assessment to address the
limitations found in Dr. Korgeski’s opinion. Specifically, the
ALJ limited Tarr to light work that did not require exposure to
potential hazards, unskilled worked that involved only routine
and simple instructions, no fast-paced work, and no more than
occasional interaction with the public.
Taken in light of the opinions provided by Dr. Jonas and
Dr. Korgeski, the residual functional capacity assessment is
18 supported by substantial evidence in the record and is based on
proper legal standards.
IV. Conclusion
Pursuant to sentence four of 42 U.S.C. § 405(g), I grant
the Acting Commissioner’s motion to affirm (Doc. no. 12) and
deny Roland Tarr’s motion to reverse (Doc. no. 11). The clerk
is directed to enter judgment accordingly and close the case.
SO ORDERED
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge
March 4, 2019
cc: Janine Gawryl, Esq. Lisa G. Smoller, Esq.