UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Roland G. Tarr

v. Case No. 17-cv-731-PB Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Roland G. Tarr seeks review, pursuant to

(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,

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

(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.,

(1st Cir. 2000). Substantial evidence is

“more than a scintilla of evidence” but less than a

preponderance. Purdy v. Berryhill,

(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.,

(1st Cir. 1991) (internal quotation marks omitted); accord

Purdy,

.

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.

& § 416.920. The claimant bears the burden through the first four steps of proving that his impairments preclude him from working. Purdy,

. 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).

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

Tarr moves to reverse the decision on the grounds that the

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.”

. 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.”

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.,

(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,

(1990).

6 claimant’s impairments later in the analysis. 4 Lavoie v.

Berryhill,

, 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.”

(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

(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,

, at *2 (Aug. 9, 2006). Opinions from sources who are not acceptable medical sources may provide evidence about the

8

, 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,

, 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,

.

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.

(a)(4)(iii). If the severity of the impairments meets

or equals a listing, then the claimant is disabled, and the

analysis ends.

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.

(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,

.

An ALJ generally cannot interpret medical data in a claimant’s

record in functional terms. Manso-Pizarro v. Sec’y of Health &

Human Servs.,

(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,

, 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

(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.

19