United States District Court, D. New Hampshire
Lance Tillinghast, Esq. Rami M. Vanegas, Esq.
MEMORANDUM AND ORDER
J. Barbadoro United States District Judge.
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.
SCOPE OF REVIEW
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)).
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.
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.
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,
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
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
Tr. at 380.
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).
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 on her ability to
“[c]oncentrate, persist, or maintain pace;” and
(3) moderate limitation 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 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.
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
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.
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. 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.
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
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.
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 ...