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Liberi v. Saul

United States District Court, D. New Hampshire

December 2, 2019

Melissa Liberi
Andrew Saul, Commissioner, Social Security Administration

          D. Lance Tillinghast, Esq. Rami M. Vanegas, Esq.


          Paul J. Barbadoro United States District Judge.

         Melissa Liberi moves to reverse the decision of the Commissioner of the Social Security Administration (“SSA”) to deny her applications for Social Security disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income (“SSI”) under Title XVI, 42 U.S.C. § 1382. The Commissioner, in turn, moves for an order affirming his decision. For the reasons that follow, the decision of the Commissioner, as announced by the Administrative Law Judge (“ALJ”), is affirmed.


         I am authorized “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.” 42 U.S.C. § 405(g); see also 42 U.S.C. § 1383(c)(3) (applying § 405(g) to SSI decisions). I “defer to the Commissioner's finding of facts, so long as they are supported by substantial evidence.” Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000) (citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam); accord 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”). “[W]hatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, ___ U.S.___, 139 S.Ct. 1148, 1154, 203 L.Ed.2d 504 (2019). Substantial evidence requires “more than a mere scintilla” but not much more. Id. The standard demands merely “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).

         The Commissioner's findings do not receive deference “when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen, 172 F.3d at 35. “Issues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the Commissioner, and the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for [him], not for the doctors or for the courts.” Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) (internal quotation marks and brackets omitted) (quoting Rodriguez, 647 F.2d at 222). Barring “a legal or factual error in evaluating a particular claim[, ]” Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989)), I “must uphold a denial of social security disability benefits, ” id.


         The parties have submitted statements of material facts, as required by Local Rule 9.1(b). Some of the relevant facts are set out in a previous decision from this court, Liberi v. Berryhill, No. 16-cv-476-JL, 2017 WL 4773336 (D.N.H. Sept. 15, 2017), R. & R. approved by 2017 WL 4773220 (D.N.H. Oct. 20, 2017). Those facts are not repeated here. Rather, this section focuses on facts that the previous decision did not recite or that developed after the previous decision was issued.

         Liberi first applied for DIB and SSI in June of 2014. Administrative Transcript (“Tr.”) at 17. In August of 2014, after performing a consultative examination on Liberi, [1] Dr. Sandra Vallery:

diagnos[ed] Liberi with social anxiety, generalized anxiety disorder, and depressive disorder not otherwise specified [and] . . . prepared a Comprehensive Psychological Profile that includes opinions on Liberi's then-current level of functioning.

Liberi, 2017 WL 4773336, at *2. This is the only functional deficit that Dr. Vallery identified:

REACTION TO STRESS, ADAPTATION TO WORK OR WORK-LIKE SITUATIONS: This claimant is able to tolerate stressors common to the work environment. She can make simple decisions and interact appropriately with supervisors. She would have some difficulty maintaining consistent attendance given her anxiety.

Tr. at 380.

         Liberi's 2014 applications were denied, and she received an unfavorable decision from an ALJ. Liberi, 2017 WL 4773336, at *1. She appealed that decision to this court, and her case was remanded to the SSA because “the ALJ did not give good reasons for discounting” the opinion of her treating psychiatrist, Dr. Kenneth Cohen. Id. at *11. In her report and recommendation, Magistrate Judge Andrea Johnstone noted:

Dr. Cohen opined that Liberi had a “complete inability to function independently outside the area of her home, ” and that she would miss more than four days of work per month due to her mental impairments. Either of those two opinions, if credited, would compel a determination that Liberi was disabled.

Id. at *6 (internal citations and brackets omitted).

         On July 25, 2018, while this case was on remand to the SSA, Dr. Cohen completed a Mental Impairment Questionnaire on Liberi. Tr. at 739-44. He listed diagnoses of agoraphobia with panic disorder and recurrent major depression. Tr. at 739. When asked to describe “the clinical findings including results of mental status examination that demonstrate[d] the severity of [Liberi's] mental impairment and symptoms, ” Dr. Cohen wrote, “Avoids going out[, ] avoids new experiences[.] Overwhelming panic attacks interrupting her life [and] causing further retreat[.] Episodic dips into depression[.]” Tr. at 739. With respect to functional limitations, Dr. Cohen opined that Liberi had: (1) no limitation on her ability to “[u]nderstand, remember or apply information;” (2) mild limitation[2] on her ability to “[c]oncentrate, persist, or maintain pace;” and (3) moderate limitation[3] on her abilities to “[i]nteract with others” and to “[a]dapt or manage” herself. Tr. at 741. Turning to the five “mental abilities and aptitudes needed to do particular types of jobs[, ]” Dr. Cohen noted that Liberi had no limitations on one, mild limitations on one, moderate limitations on one, and marked limitations[4] on two (“[t]ravel[ing] in unfamiliar place[s]” and “[u]s[ing] public transportation”). Tr. at 741. As to the four “mental abilities and aptitudes needed to do semiskilled and skilled work[, ]” Dr. Cohen determined that Liberi had no limitation on any of them. Tr. at 742. Finally, with respect to the sixteen “mental abilities and aptitudes needed to do unskilled work[, ]” Dr. Cohen indicated that Liberi had no limitation on eleven, mild limitation on two, moderate limitation on two, and marked limitation on only one (“[c]ompleting a normal workday and workweek without interruptions from psychologically based symptoms”). Tr. at 742. After identifying the foregoing limitations, Dr. Cohen explained, “All workplace indicators [are] predicated on remission of panic [and] agoraphobia. Ms. Liberi is very capable when not impaired by panic [and] social anxiety.” Tr. at 742. Finally, Dr. Cohen anticipated that Liberi would be absent from work “[m]ore than four days per month” because of her mental impairments or treatment for them. Tr. at 743.

         On January 4, 2019, Dr. Cohen wrote a letter to Liberi's attorney which states, in full:

I continue to treat Ms. Liberi for Panic Disorder with Agoraphobia and past episodes of Major Depression. She has been stabilized for both conditions with medication[, ] however, her stability is easily disrupted when ordinary life stressors provoke anxiety.
Ms. Liberi has episodic flairs [sic] of panic disorder and retreats into agoraphobic isolation. Maintaining consistent attendance, focus and concentration at work, school[, ] or other scheduled activities will continue to be interrupted into the future. These symptom flairs [sic] are still frequent.
The medication treatment does provide better stability[, ] however, persistent symptom break through remains problematic. As a result, Ms. Liberi would fail at any job requiring consistent attendance and focus.

Tr. at 824.

         On remand, the ALJ conducted a second hearing on January 29, 2019 at which he took telephonic testimony from Dr. Alfred Jonas, a psychiatrist who reviewed Liberi's medical records, but had never treated or examined her. See Tr. at 466-504. Dr. Jonas noted diagnoses of anxiety, depression, and “a rule[-]out of post-traumatic stress disorder.” Tr. at 471.[5] Next he explained why, in his opinion, none of those impairments was severe enough to satisfy the criteria the SSA uses to determine whether a mental impairment is per se disabling. Tr. at 471-74.

         Assessing the severity of Liberi's mental impairments, Dr. Jonas offered this testimony:

And [Dr. Cohen] also said that [Liberi] could not leave [her] house. There's nothing in the record that indicates that that would be true. She does not have a pattern of unkept appointments. She drove herself to the [consultative examination]. And, again, there's just nothing here that would leave us with a conclusion that she could not leave her house.

Tr. at 474-75. With respect to the functional limitations that resulted from Liberi's mental impairments, Dr. Jonas opined that moderate interaction with others is

the highest level of impairment that I could rate from this record and it's sort of questionable what to say about people who have a mild to moderate social impairment and the question would be could such a person deal with the general public in an unrestricted way? The record doesn't really give us much insight about that. The other question we might ask about somebody like that is would such a person have difficulty dealing with bosses or co-workers in settings that require higher levels of teamwork where an excellent ability to work with co-workers and bosses is centrally important to the task? And, again, this record does not give us any insight about whether the claimant would be impaired in doing that. Those would certainly be the possibilities, that she would have trouble in an unrestricted interaction with the general public or higher levels of teamwork, but I can't prove it to you from the record.

Tr. at 478-79.

         Subsequently, Liberi's counsel elicited testimony from her concerning her purported inability to maintain consistent attendance at work. See Tr. at 494-95. On that same topic, Liberi's counsel asked Dr. Jonas whether, as indicated by Drs. Vallery and Cohen, Liberi's “experience of symptoms relating to [her mental health] diagnoses would interfere with her ability to consistently show up at a job.” Tr. at 498. Dr. Jonas replied:

Dr. [Vallery] would not be in a position to say that because Dr. [Vallery] scheduled to see the claimant one time and the claimant arrived on time. She drove herself. So Dr. [Vallery] does not have a direct personal reason to think that the claimant would have difficulty being punctual and reliable. Dr. Cohen would be in a position to do that if the doctor experienced that the claimant did not reliably keep appointments, but the record does not say that's true. So, again, for even Dr. Cohen, who treats the claimant over time, to say that the claimant could not be reliable is not founded on anything. It's just, you know, unless [Liberi] said that . . . she felt ...

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