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Tarr v. Berryhill

United States District Court, D. New Hampshire

March 4, 2019

Roland G. Tarr
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          Janine Gawryl, Esq. Lisa G. Smoller, Esq.

          ORDER

          PAUL J. BARBADORO UNITED STATES DISTRICT JUDGE

         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 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 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. 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 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 ...


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