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Liberi v. Berryhill

United States District Court, D. New Hampshire

September 15, 2017

Melissa Lynn Liberi
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          Laurie Smith Young, Esq. T. David Plourde, AUSA


          Andrea K. Johnstone United States Magistrate Judge

         Pursuant to 42 U.S.C. § 405(g), Melissa Liberi moves to reverse the Acting Commissioner's decision to deny her applications for Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income, or SSI, under Title XVI, 42 U.S.C. § 1382. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, this matter should be remanded to the Acting Commissioner for further proceedings.

         I. Standard of Review

         The applicable standard of review in this case provides, in pertinent part:

The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive

42 U.S.C. § 405(g) (setting out the standard of review for DIB decisions); see also 42 U.S.C. § 1383(c) (3) (establishing § 405(g) as the standard of review for SSI decisions). However, the court "must uphold a denial of social security . . . benefits unless 'the [Acting Commissioner] has committed a legal or factual error in evaluating a particular claim.'" Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).

         As for the statutory requirement that the Acting Commissioner's findings of fact be supported by substantial evidence, "[t]he substantial evidence test applies not only to findings of basic evidentiary facts, but also to inferences and conclusions drawn from such facts." Alexandrou v. Sullivan, 7 64 F.Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1966)). In turn, "[s]ubstantial evidence is 'more than [a] mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Currier v. Sec'y of HEW, 612 F.2d 594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). But, "[i]t is the responsibility of the [Acting Commissioner] to determine issues of credibility and to draw inferences from the record evidence. Indeed, the resolution of conflicts in the evidence is for the [Acting Commissioner], not the courts." Irlanda Ortiz v. Sec'y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations omitted). Moreover, the court "must uphold the [Acting Commissioner's] conclusion, even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence." Tsarelka v. Sec'y of HHS, 842 F.2d 529, 535 (1st Cir. 1988) (per curiam). Finally, when determining whether a decision of the Acting Commissioner is supported by substantial evidence, the court must "review[] the evidence in the record as a whole." Irlanda Ortiz, 955 F.2d at 769 (quoting Rodriguez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).

         II. Background

         The parties have submitted a Joint Statement of Material Facts. That statement, document no. 12, is part of the court's record and is summarized here, rather than repeated in full.

         Liberi has been given a No. of diagnoses for mental impairments, including mood disorder, anxiety, depression, panic disorder without agoraphobia, panic disorder with agoraphobia, rule-out posttraumatic stress disorder ("PTSD"), [1] and generalized anxiety disorder with panic. She has been treated with various medications[2] and has also received therapy.

         Liberi applied for DIB and SSI in June of 2014. In August of 2014, she was seen by Dr. Sandra Vallery for a consultative examination. After diagnosing Liberi with social anxiety, generalized anxiety disorder, and depressive disorder not otherwise specified, Dr. Vallery prepared a Comprehensive Psychological Profile that includes opinions on Liberi's then-current level of functioning. Subsequently, Dr. Patricia Salt, a non-examining state-agency psychological consultant, evaluated the medical evidence of record including Dr. Vallery's profile. Dr. Salt determined that Liberi had two mental impairments, anxiety disorders and affective disorders, but that neither impairment significantly limited her mental ability to perform basic work activities.

         In February of 2015, in connection with Liberi's successful application for benefits from the State of New Hampshire's program of Aid for the Permanently and Totally Disabled, Dr. Peter Mosbach, a psychological consultant who reviewed the medical evidence but did not examine Liberi, completed a Mental RFC Worksheet on her.[3] He listed two impairments: (1) anxiety and panic attacks; and (2) depression/mania. The worksheet asked Dr. Mosbach to evaluate Liberi's ability to perform 16 specific activities. He found that she: (1) was not limited in her ability to perform three activities; (2) had slight limitations in performing eight activities; and (3) had moderate limitations in performing five activities (maintaining attention and concentration to sustain employment, working at a consistent pace, interacting and cooperating appropriately with co-workers, interacting appropriately with the general public, and traveling outside the home).

         In September of 2015, Liberi's treating psychiatrist, Dr. Kenneth Cohen, completed a Mental Impairment Questionnaire on Liberi. At that point, he had been treating Liberi for about 16 months, had seen her more than a dozen times, and had seen her monthly since April. In his questionnaire, Dr. Cohen listed diagnoses of panic disorder and agoraphobia. In addition, he identified at least 16 different signs and symptoms of Liberi's mental impairments, including this one:

Recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror and sense of impending doom occurring on the average of at least once a week.

         Administrative Transcript (hereinafter "Tr.") 415. On the preprinted form he filled out, Dr. Cohen marked that symptom with an asterisk and annotated it: "Key symptom!" Id.

         In the section of the questionnaire devoted to functional limitations, Dr. Cohen opined that Liberi: (1) had extreme difficulties in maintaining social functioning; (2) had marked restrictions on her activities of daily living; (3) had marked difficulties in maintaining concentration, persistence, or pace; and (4) had experienced four or more episodes of decompensation within a 12-month period, each of at least two weeks duration.

         With respect to the 16 mental abilities and aptitudes needed to do unskilled work, Dr. Cohen opined that Liberi was:(1) limited but satisfactory in one ability; (2) seriously limited but not precluded in seven abilities; (3) unable to meet competitive standards in five abilities (maintaining regular attendance and being punctual within customary, usually strict tolerances; completing a normal workday and workweek without interruptions from psychologically based symptoms; performing at a consistent pace without an unreasonable No. and length of rest periods; getting along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes; and responding appropriately to changes in a routine work setting); and (4) had no useful ability to function in two areas (working in coordination with or proximity to others without being unduly distracted, and dealing with normal work stress).[4] In addition, Dr. Cohen opined that Liberi had an anxiety-related disorder and a complete inability to function independently outside of her home, and that she would be absent from work more than three days per month as a result of her mental impairments or treatment for them.

         After Liberi's applications were denied at the initial level, she received a hearing before an Administrative Law Judge ("ALJ"). At the hearing, the ALJ took testimony from a vocational expert ("VE"). The ALJ began by asking the VE what jobs could be performed by a person with the following characteristics:

Let's assume a hypothetical individual [of] the claimant's same age and education with the past jobs you've described. Further assume that this individual is limited to the following. This will be a non-exertional limitation. This individual will have the following psychological limitations. Limited to perform[ing] simple routine tasks. This individual can frequently respond to co-workers and the public.

Tr. 80. The VE testified that the ALJ's hypothetical individual could not perform Liberi's past jobs, because they are all semiskilled, but further testified that such a person could perform the unskilled jobs of merchandise marker, office helper, and dietary aide. When the ALJ changed the hypothetical to assume an "individual [who] could frequently interact with supervisors, occasional[ly interact with] co-workers, and never [interact with] the public, " Tr. 81, the VE testified that such a person could perform the jobs of merchandise marker, office helper, and housekeeper. Then, the VE testified that all work would be precluded if the hypothetical individual could never interact with co-workers. Finally, the ALJ posed a fourth hypothetical, which added to his first hypothetical "a limitation that this individual would be off-task up to 15 percent of the day due to psychological reasons." Tr. 82. The VE testified that such a person would be unemployable. After the ALJ finished questioning the VE, Liberi's counsel asked the VE about the effect of being absent from work three times a month, and the VE testified that "the customary tolerance would be no more than one [time] per month." Tr. 83.

         After the hearing, the ALJ issued a decision in which he gave: (1) little weight to the opinions of Dr. Salt; (2) little weight to the opinions expressed in Dr. Vallery's Comprehensive Psychological Profile; (3) great weight to the opinions in Dr. Mosbach's Mental RFC Worksheet; and (4) little weight to the opinions in Dr. Cohen's Mental Impairment Questionnaire.

         The ALJ's decision also includes the following relevant findings of fact and conclusions of law:

3. The claimant has the following severe impairments: anxiety disorder and affective disorder (20 CFR 404.1520(c) and 416.920(c)) .
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is limited to perform[ing] simple routine tasks with frequent interaction with supervisors and occasional interaction with coworkers. The claimant can never interact with the public.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant No. in the national economy that the claimant can perform (20 CFR ...

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