UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jonathon Irish

v. Civil No. 16-cv-430-JD Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Jonathon Irish seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of Social

Security, denying his application for supplemental security

income benefits under Title XVI of the Social Security Act,

, et seq. Irish moves to reverse, contending that

the Administrative Law Judge (“ALJ”) erred in assessing his

residual functional capacity and in finding that there were jobs

he could do despite his impairments. The Acting Commissioner

moves to affirm.

Standard of Review

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “is limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s

factual findings as long as they are supported by substantial

evidence. § 405(g); see also Fischer v. Colvin,

(1st Cir. 2016). If the Acting Commissioner used the correct

legal standard and the findings are supported by substantial

evidence, the court must affirm the decision, even if the record

could support a different conclusion. Irlanda Ortiz v. Sec’y of

Health & Human Servs.,

(1st Cir. 1991);

Evangelista v. Sec’y of Health & Human Servs.,

(1st Cir. 1987).

Background

Irish was twenty-eight years old when he filed an

application for supplemental security income benefits in

December of 2014. He has a high school education.

During his childhood, Irish lost his left eye in an

accident and was the victim of abuse perpetrated by his father.

His father was removed from the home when he was ten or eleven.

His mother applied for disability for Irish while he was a

child. Irish wears a prosthetic left eye.

Irish was arrested in November of 2013 on federal charges.

Pursuant to a court order, Irish was evaluated by Dr. Samantha

DiMisa to determine whether he was competent to stand trial.

Dr. DiMisa diagnosed posttraumatic stress disorder, attention-

2 deficit/hyperactivity disorder, and anti-social personality

disorder and found that Irish’s prognosis was optimistic. Dr.

DiMisa concluded that Irish understood the legal proceedings

against him, was able to assist counsel in his defense and make

decisions regarding his defense, and was competent to stand

trial.

On December 11, 2014, Irish pleaded to two of the charges

against him and was sentenced to eighteen months of imprisonment

with three years of supervised release. He was released based

on time served on February 20, 2015.

After he was released from prison, Irish had an evaluation

of his prosthetic eye at Eyesight New Hampshire in March of

2015. He was diagnosed with acute conjunctivitis. Irish also

began mental health counseling in March of 2015 when he left

prison with Counselor Kris Geno at RTT Associates.

In May of 2015, Irish met with Dr. Robert Prescott for a

consultative psychological examination related to his

application for social security benefits. Dr. Prescott reviewed

Irish’s history in addition to talking to Irish about his past

mental health issues and treatment. Dr. Prescott diagnosed

posttraumatic stress disorder and antisocial personality

disorder and noted that Irish’s ability to handle moderate to

high levels of stress was impaired but he could make basic

decisions and interact politely with others in a work

3 environment, although it would cause distress. He gave Irish a

guarded prognosis because of his questionable insight and legal

record.

Also in May of 2015, state agency psychologist Dr. Stephen

Kleinman reviewed Irish’s records and prepared a residual

functional capacity opinion. Dr. Kleinman found that Irish had

marked limitation in his ability to interact with the public,

moderate limitation in his ability to ask simple questions and

ask for assistance, and moderate limitation in his ability to

get along with co-workers. Dr. Kleinman found that generally

Irish would do poorly in interacting with the public but could

interact with other people to do simple tasks.

In June of 2015, a state agency physician, Dr. Maghana

Karande, reviewed Irish’s records and stated that Irish’s vision

impairment was not severe.

Irish continued regular counseling sessions with Counselor

Geno. Geno continued to record the results of counseling

sessions through the summer of 2015. By the fall, Geno noted

that Irish had begun to miss appointments because of issues,

including his wife’s health, his landlord, and problems with his

vehicle, and by December Irish’s attendance had dramatically

declined.

In her periodic review form completed in January of 2016,

Geno noted Irish’s problems with attending sessions and also

4 noted increased concern about Irish’s mental health. On an

undated checklist, Geno listed “Easy Distractibility” and

“Flight of Ideas” along with difficulties in social functioning

and concentration but concluded that Irish was able to function

independently, appropriately, and effectively. With respect to

the listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1, Counselor Geno addressed Listing 12.06, and noted

that Irish had marked difficulties in several areas, including

the ability to function independently outside of his home.

A hearing was held before an ALJ on March 29, 2016. Irish

was represented by counsel and testified at the hearing. He

described his childhood issues, his continuing mental health

problems, and his daily activities. A vocational expert also

testified who identified work that a person could do with

Irish’s vocational and educational characteristics and residual

functional capacity.

The ALJ issued a decision on April 13, 2016, concluding

that Irish was not disabled. The ALJ found that Irish had

severe impairments of an anxiety disorder, a posttraumatic

stress disorder, a personality disorder, and left eye blindness.

The ALJ also found that Irish had the residual functional

capacity to do a full range of work at all exertional levels but

needed to avoid exposure to workplace hazards and heights and to

avoid bright and fluorescent lights. The ALJ limited Irish to

5 simple and unskilled work done in a low-stress environment and

without social interaction with the general public. Based on

the jobs identified by the vocational expert, the ALJ found that

work existed that Irish could do. The Appeals Council denied

Irish’s request for review, making the ALJ’s decision the final

decision of the Acting Commissioner.

Discussion

In determining whether a claimant is disabled, the ALJ

follows a five-step sequential analysis.

.

The steps are (1) determining whether the claimant is engaged in

substantial gainful activity; (2) determining whether she has a

severe impairment; (3) determining whether the impairment meets

or equals a listed impairment; (4) assessing the claimant’s

residual functional capacity and her ability to do past relevant

work; and (5) determining whether the claimant can make an

adjustment to other work. § 416.920(a). The claimant bears the

burden through the first four steps of proving that his

impairments preclude him from working. Freeman v. Barnhart,

(1st Cir. 2001). At the fifth step, the Acting

Commissioner has the burden of showing that jobs exist which the

claimant can do. Heggarty v. Sullivan,

(1st

Cir. 1991).

6 Irish contends that the Acting Commissioner’s decision must

be reversed because the ALJ ignored evidence in assessing

Irish’s residual functional capacity and because substantial

evidence is lacking to support the determination at the fifth

step of the sequential analysis that there are jobs he could do.

The Acting Commissioner moves to affirm on the grounds that the

ALJ properly assessed Irish’s residual functional capacity, that

Irish waived the issue of whether he can do the jobs identified

by the vocational expert by failing to raise it before the ALJ,

and that Irish has not shown the step five finding was wrong.

A. Residual Functional Capacity

A claimant’s “residual functional capacity is the most [he]

can still do despite [his] limitations.” § 416.945(a)(1). A

residual functional capacity is assessed “based on all the

relevant evidence in [the claimant’s] case record.” Id. In

addition, the ALJ considers all of the claimant’s medically

determinable impairments, even those not found to be severe at

step two. § 461.945(a)(2).

Irish contends that the ALJ’s residual functional capacity

assessment was wrong because he ignored record evidence, failed

to consider his psychological impairments together rather than

individually, and dismissed Counselor Geno’s records. The

Acting Commissioner points out that the ALJ did consider the

7 record evidence and found limitations accordingly. The Acting

Commissioner also demonstrates that substantial evidence

supports the ALJ’s residual functional capacity assessment.

Irish contends that the ALJ found he consistently attended

appointments but failed to consider Counselor Geno’s report that

Irish had had difficulty getting to appointments because of car

trouble. The ALJ explicitly considered Geno’s report about

attendance.

With respect to Geno’s other notes and records, the ALJ

explained that the treatment notes were largely documentation of

Irish’s reports of his feelings and symptoms and lacked mental

status examination results or other objective opinions about

Irish’s mental condition. See Tann v. Berryhill,

, at *5, n.6 (D.N.H. Apr. 10, 2017) (claimant’s

descriptions of symptoms reported in medical notes are not

opinions). The ALJ gave Geno’s psychiatric checklist little

weight as a medical opinion because Geno is not an acceptable

medical source, because the checklist was internally

inconsistent, and because it lacked clinical observations or

documentation of the checked functioning limits. Therefore,

contrary to Irish’s challenges, the ALJ properly considered and

evaluated the records provided by Counselor Geno.

Irish also argues that the ALJ erred in finding that he had

only mild limitations, based on his daily activities, when Dr.

8 Prescott’s noted that Irish appeared to have difficulty shopping

on his own without significant distress and the record showed he

needed a service dog to accompany him. Irish also contends that

the ALJ failed to consider his impairments together rather than

individually.

Contrary to Irish’s view of the decision, the ALJ did

consider Irish’s complaints of mental health limitations and the

symptoms documented in the record. Because of those

impairments, the ALJ limited Irish to simple, unskilled work in

a low stress environment and precluded social interaction with

the general public. Substantial evidence in the record supports

the ALJ’s assessment. Irish does not show that the residual

functional capacity assessed by the ALJ failed to account for

his medically determinable impairments.

B. Step Five

Irish also contends that the ALJ’s finding at step five

that there were jobs he could do despite his impairments is not

supported by substantial evidence because “it is more likely

than not, he would be exposed to fluorescent lighting” in the

jobs identified by the vocational expert. He also contends that

he could not do the job of laborer in stores because he would be

required to use color vision, depth perception, near acuity, and

9 hearing.1 He argues that the ALJ erred because the jobs the

vocational expert identified conflict with the Dictionary of

Occupational Titles information about those jobs with respect to

exposure to fluorescent lighting.

The Acting Commissioner asserts that Irish waived any issue

that the jobs identified by the vocational expert were precluded

by exposure to fluorescent lighting by failing to raise that

issue during the hearing. See Mills v. Apfel,

(1st Cir. 2001) (claims not raised to the ALJ are deemed

waived). Irish’s counsel had the opportunity to question the

vocational expert about the jobs suggested. Counsel asked about

what a laborer in stores would do, asked about whether an

inability to be around cleaning products would preclude that

work, and asked about air conditioning and temperature. Counsel

could have, but did not, raise the issue of fluorescent lights.

Therefore, Irish has waived the challenge to the ALJ’s step five

finding based on the issue of whether the jobs identified would

require work under fluorescent lights. Cf. Moore v. Berryhill,

, at *3 (D.N.H. May 25, 2017) (no waiver based on

limited hearing on remand).

1 The ALJ did not find limitations for color vision, depth perception, near acuity, or hearing. Irish does not suggest that those should have been included at step two or should have been identified in the residual functional capacity assessment nor does he cite record evidence to support those limitations. Therefore, the cited limitations cannot be considered here.

10 In addition, substantial evidence supports the ALJ’s

finding. The vocational expert testified that the identified

jobs could be performed by someone who must avoid bright and

fluorescent lights. When the hypothetical posed to the

vocational expert accurately describes the claimant’s

limitations, the vocational expert’s opinion based on the

hypothetical is substantial evidence to support the finding at

step five. Cook v. Berryhill,

, at *15 (D. Mass.

Mar. 27, 2017). For the reasons stated by the Acting

Commissioner, Irish has not shown any conflict between the

Dictionary of Occupational Titles and the vocational expert’s

opinion.

Conclusion

For the foregoing reasons, the claimant’s motion to reverse

(document no. 10) is denied. The Acting Commissioner’s motion

to affirm (document no. 11) is granted.

The Acting Commissioner’s decision is affirmed.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge June 6, 2017 cc: Judith E. Gola, Esq. T. David Plourde, Esq.

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