Liberi v. US Social Security Administration, Acting Commissioner

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Melissa Liberi
v. 	Case No. 19-cv-397-PB
Opinion No. 2019 DNH 201
Andrew Saul, Commissioner,
Social Security Administration
MEMORANDUM AND ORDER
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. SCOPE OF REVIEW
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,
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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
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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.
II. BACKGROUND
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
1 “A consultative examination is a physical or mental examination
or test purchased for [a claimant] at [the SSA’s] request . . .
.” 20 C.F.R. §§ 404.1519, 416.919.
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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
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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 limitation2 on her ability to
“[c]oncentrate, persist, or maintain pace;” and (3) moderate
limitation3 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
limitations4 on two (“[t]ravel[ing] in unfamiliar place[s]” and
“[u]s[ing] public transportation”). Tr. at 741. As to the four
2 The form that Dr. Cohen completed specifies that with a mild
limitation, a “[p]atient’s functioning . . . independently,
appropriately, effectively, and on a sustained basis is slightly
limited.” Tr. at 741.
3 The form that Dr. Cohen completed specifies that with a
moderate limitation, a “[p]atient’s functioning . . .
independently, appropriately, effectively, and on a sustained
basis is fair.” Tr. at 741.
4 The form that Dr. Cohen completed specifies that with a marked
limitation, a “[p]atient’s functioning . . . independently,
appropriately, effectively, and on a sustained basis is
seriously limited.” Tr. at 741.
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“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
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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.
5 “‘Rule-out’ in a medical record means that the disorder is
suspected but not confirmed—i.e., there is evidence that the
criteria for a diagnosis may be met, but more information is
needed in order to rule it out.” Byes v. Astrue, 687 F.3d 913,
916 n.3 (8th Cir. 2012) (citing United States v. Grape, 549 F.3d
591, 593 n.2 (3d Cir. 2008)).
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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
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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
she couldn’t be reliable, where things were too much of
a 	challenge, 	but 	it’s 	not 	the 	reality 	that 	Dr. 	Cohen
experiences. It’s what the claimant tells him.
Tr. at 498–99. Thereafter, Liberi testified that she had
rescheduled many office visits with Dr. Cohen, Tr. at 501, but
Liberi’s counsel, in response to a question from the ALJ, could
not point to evidence in Dr. Cohen’s records that corroborated
Liberi’s testimony on that point, Tr. at 501–02.
After Dr. Jonas testified, the ALJ took testimony from a
vocational expert (“VE”). He began by asking the VE to
[a]ssume 	a 	hypothetical 	individual 	of 	the 	claimant’s
same age . . . [,] education[,] and . . . past work . .
. [,] limited to . . . non-exertional [work, who] . . .
should have no interaction when it comes to the general
public 	and 	. 	. 	. 	should 	avoid 	higher 	levels 	of
cooperation 	in 	the 	workplace 	. 	. 	. 	with 	co-workers 	and
supervisors.
Tr. at 507–08. In response, the VE testified that such a
person could perform one of Liberi’s past jobs—child
monitor—in addition to assembling circuit boards,
“inspecting plastic products[,]” and tending spooling
machines. Tr. at 508–09. Then the VE testified that those
positions would be precluded if the hypothetical
“individual would be off task up to 15 percent or more a
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day based on mental health symptoms,” Tr. at 509, or the
“individual would miss more than four days a month on an
ongoing and chronic basis . . . due to mental health
symptoms,” Tr. at 510.
After Liberi’s hearing, the ALJ issued a decision in which
he found that claimant had the severe mental impairments of
anxiety and depression, but that neither of those impairments
was severe enough to satisfy the criteria under which the SSA
deems an impairment to be per se disabling. Tr. at 443–44.
Accordingly, he went on to assess Liberi’s residual functional
capacity (“RFC”).6 He found that she had the RFC “to perform a
full range of work at all exertional levels but with the
following nonexertional limitations: the claimant can never
interact with the public [and] . . . should avoid work that
involves higher levels of cooperation with coworkers and
supervisors.” Tr. at 446.
In determining Liberi’s RFC, the ALJ (1) gave Dr. Cohen’s
“opinions little weight” on grounds that they were “neither well
support[ed] nor consistent with the record,” Tr. at 451; (2)
gave “some weight” to Dr. Vallery’s opinions on Liberi’s mental
6 “[R]residual functional capacity is the most [a claimant] can
still do despite his or her limitations.” Purdy, 887 F.3d at 10
n.2 (internal quotation marks and brackets omitted) (quoting 20
C.F.R. § 416.945(a)(1)) (evaluating RFC for SSI claims); accord
20 C.F.R. § 404.1545(a)(1) (evaluating RFC for DIB claims).
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abilities, Tr. at 451, but “little weight” to her opinions on
Liberi’s potential job attendance, Tr. at 452; and (3) found
“that the opinion of . . . Dr. Jonas [was] most persuasive as it
[was] consistent with and supported by the objective medical
evidence in the record,” Tr. 452.
Finally, after determining that Liberi no longer had the
RFC to perform her past work, Tr. at 453, the ALJ determined
that she retained the RFC to perform the unskilled light-duty
jobs of printed circuit board preassembler, “spooling machine
operator[,]” and plastic products inspector, Tr. at 454. For
that reason, the ALJ ruled that Liberi had “not been under a
disability . . . from August 13, 2013, through the date of [his]
decision” issued on February 13, 2019. Tr. at 454–55.
III. DISCUSSION
A. 	The Legal Framework
A person is eligible for disability benefits when she (1) is
insured for DIB; (2) has not reached retirement age; (3) has
filed an application; and (4) is “under a disability.” 42 U.S.C.
§ 423(a)(1)(A), (B), (D), (E). A person must be “aged, blind, or
disabled” and must meet certain requirements pertaining to
income and assets to be eligible for SSI. 42 U.S.C. §
1382(a)(1). At issue in this case is whether the ALJ correctly
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determined that Liberi was not under a disability from August
13, 2013 through February 13, 2019.
An ALJ employs a five-step sequential evaluation process
when determining whether a claimant is disabled in the context
of DIB and SSI eligibility. See 20 C.F.R. §§ 404.1520 (applying
to DIB eligibility), 416.920 (applying to SSI eligibility). The
five steps are:
1) 	if 	the 	[claimant] 	is 	engaged 	in 	substantial 	gainful
work 	activity, 	the 	application 	is 	denied; 	2) 	if 	the
[claimant] 	does 	not 	have, 	or 	has 	not 	had 	within 	the
relevant time period, a severe impairment or combination
of 	impairments, 	the 	application 	is 	denied; 	3) 	if 	the
impairment meets the conditions for one of the “listed”
impairments in the Social Security regulations, then the
application 	is 	granted; 	4) 	if 	the 	[claimant’s 	RFC] 	is
such that he or she can still perform past relevant work,
then 	the 	application 	is 	denied; 	5) 	if 	the 	[claimant],
given his or her [RFC], education, work experience, and
age, is unable to do any other work, the application is
granted.
Purdy, 887 F.3d at 10; accord 20 C.F.R. § 416.920.
The claimant “has the burden of production and proof at the
first four steps of the process.” 7 Freeman v. Barnhart, 274 F.3d
606, 608 (1st Cir. 2001). She “must prove [she] is disabled by a
preponderance of the evidence.” Baillargeon v. Berryhill, 359 F.
Supp. 3d 172, 179 (D.N.H. 2019). Finally, “in assessing a
disability claim, the Commissioner considers objective and
7 At step five, the burden of proof shifts to the Commissioner,
Purdy, 887 F.3d at 10, however, the Commissioner’s step-five
determination is not at issue in this case.
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subjective factors, including: (1) objective medical facts; (2)
claimant’s subjective claims of pain and disability as supported
by the testimony of the claimant or other witness; and (3) the
claimant’s educational background, age, and work experience.”
Stratton v. Astrue, 987 F. Supp. 2d 135, 142 (D.N.H. 2012)
(internal brackets omitted).
B. 	Liberi’s Claims
Liberi claims that the ALJ erred in assessing her RFC by
(1) giving too much weight to the opinions of Dr. Jonas and too
little weight to the opinions of Drs. Cohen and Vallery, Mem. in
Supp. of Pl.’s Mot. for Order Rev’g the Decision of the Comm’r,
Doc. No. 8-1 at 17, and (2) improperly evaluating her statements
about her symptoms and their limiting effects, Doc. No. 8-1 at
21.
1. 	Weighing the Medical Opinions
The ALJ generally gives the greatest weight to medical
opinions from treating sources, lesser weight to the opinions of
medical sources who have merely examined the claimant, and the
least weight to opinions from those who have neither treated nor
examined the claimant. See 20 C.F.R. §§ 404.1527(c)(1)–(2),
416.927(c)(1)-(2).8 Moreover, the ALJ gives “controlling weight”
8 For applications filed on or after March 27, 2017, a new set of
regulations governs the evaluation of medical opinions. See 20
C.F.R. §§ 404.1520c, 416.920c. Because Liberi filed her
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to the opinion of a treating source if the ALJ “find[s] that a
treating source’s medical opinion on the issue(s) of the nature
and severity of [the claimant’s] impairment(s) is well-supported
by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in [the claimant’s] case record . . . .” Id. §§
404.1527(c)(2); 416.927(c)(2). Regardless of whether an ALJ
gives controlling weight to a treating source’s opinion, he must
“always give good reasons . . . for the weight [he] give[s] [a
claimant’s] treating source’s medical opinion.” Id. §§
404.1527(c)(2); 416.927(c)(2). Good reasons “offer a rationale
that could be accepted by a reasonable mind,” Levesque v. U.S.
Soc. Sec. Comm’n, Acting Comm’r, No. 18-cv-420-LM, 2019 WL
2004298, at *4 (D.N.H. May 7, 2019) (quoting Dimambro v. U.S.
Soc. Sec. Admin., Acting Comm’r, No. 16-cv-486-PB, 2018 WL
301090, at *10 (D.N.H. Jan. 5, 2018)), and “are both specific .
. . and supportable,” Dimambro, 2018 WL 301090, at *10
(alternation in original)(citation omitted).
When evaluating a treating source’s opinion that is not
given controlling weight or any other medical opinion, the SSA
considers the following factors: (1) the “[l]ength of the
treatment relationship and the frequency of the examination[;]”
application for DIB and SSI benefits in June 2014, Tr. at 17,
the previous regulations govern.
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(2) the “[n]ature and extent of the treatment relationship[;]”
(3) the degree to which the “medical source presents relevant
evidence to support a medical opinion, particularly medical
signs and laboratory findings[;]” (4) the consistency of the
opinion “with the record as a whole[;]” (5) the specialization
of the medical source, if any; and (6) other factors, such as
“the amount of understanding of [the SSA’s] disability programs
and their evidentiary requirements that a medical source has . .
. . ” 20 C.F.R. §§ 404.1527(c)(2)–(6), 416.927(c)(2)–(6).
Having described the operative legal principles, I turn to
the ALJ’s assessments of the three medical opinions that Liberi
alleges he misevaluated.
a. 	Dr. Cohen
The ALJ began by noting that Dr. Cohen had completed
mental-impairment questionnaires in 2015 and 2018 and had
written the aforementioned letter in 2019. Tr. at 450. The ALJ
also acknowledged Dr. Cohen’s specialization as a psychiatrist,
and his long-term treating relationship with Liberi. Tr. at 450.
The ALJ went on to give Dr. Cohen’s opinions “little weight[,]”
however, because “they [were] not well supported nor consistent
with the evidence in the record.” Tr. at 450.
With respect to the support proffered by Dr. Cohen, the ALJ
pointed out that where the mental impairment questionnaires
asked for clinical findings, Dr. Cohen responded by citing
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nothing more than Liberi’s subjective statements about her
symptoms. Tr. at 450. He also pointed out that while Dr. Cohen
opined that Liberi would miss more than four days of work per
month due to her mental impairments or treatment for them, Dr.
Cohen’s treatment records included no objective first-hand
evidence, such as a history of missed or rescheduled
appointments, to support that opinion. Tr. at 451. Instead, he
seemingly relied on Liberi’s subjective statements as the basis
for that opinion.9 Tr. at 451. Vis-à-vis the consistency with the
record as a whole, the ALJ noted Liberi’s “primarily benign
mental status examinations, the primarily normal examination
findings of consultative examiner Dr. Vallery, and the
claimant’s own reports of fairly extensive activities of daily
living,” providing extensive citations to the record. Tr. at
451.
Liberi provides four grounds in support of her argument
that the ALJ erroneously discounted Dr. Cohen’s opinions. First,
she argues that the ALJ “failed to consider that Dr. Cohen’s
opinions were based . . . upon a diagnosis of panic disorder
with agoraphobia,” a diagnosis that Dr. Jonas did not
9 “Statements in a medical record that merely repeat a claimant’s
subjective complaints are not medical opinions . . . .” Tann v.
Berryhill, No. 16-cv-449-JD, 2017 WL 1326235, at *5 n.6 (D.N.H.
Apr. 10, 2017).
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acknowledge when evaluating Dr. Cohen’s opinions. Doc. No. 8-1
at 17. Second, the ALJ conflated “the absence of evidence” with
“conclusive evidence” that Liberi would not struggle with
attendance at work, thereby agreeing with Dr. Jonas that “Dr.
Cohen had not cited adequate objective evidence to support his
opinions . . . .” Doc. No. 8-1 at 17. Third, the ALJ violated
the so-called treating-physician rule. Doc. No. 8-1 at 17–18;
see also Purdy, 887 F. 3d at 13 n.8 (acknowledging the
“treating-physician rule” and its inapplicability to “claims
filed on or after March 27, 2017”). Fourth, “the ALJ did not
give adequately specific reasons” for discounting Dr. Cohen’s
opinions. Doc. No. 8-1 at 18. I am not persuaded by any of those
arguments.10
First, with respect to the diagnosis of panic disorder with
agoraphobia, the absence of those words from Dr. Jonas’s
testimony is of no moment. The ALJ devoted considerable
attention to agoraphobia in his discussion of step two. See Tr.
at 444–45. At step three, both Dr. Jonas and the ALJ considered
10 The persuasiveness of Liberi’s argument is compromised by its
brevity. After setting out the applicable legal principles, the
“Legal Argument” section of Liberi’s memorandum of law regarding
the weight of the medical evidence consists of a seven-and-one-
half-page description of Dr. Jonas’s testimony, a five-and-one-
half-page description of the ALJ’s evaluation of the medical
opinions, and four or five one-sentence legal arguments
supported by a single citation of authority. Doc. No. 8-1 at 3–
19.
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the SSA’s Listing 12.06, e.g., Tr. at 444, 471, which is labeled
“anxiety and obsessive-compulsive disorders” and expressly
covers panic disorder and agoraphobia. 20 C.F.R. Pt. 404, Subpt.
P, App. 1, Listing 12.06.
Second, Liberi argues that the ALJ erred by agreeing with
Dr. Jonas that Dr. Cohen had not cited objective evidence in
support of his opinion that she would miss four or more days of
work per month. Liberi does not, however, identify any objective
evidence that Dr. Cohen cited but the ALJ overlooked. Rather,
she argues, in a single sentence and without any citation to
authority, that the ALJ erred by relying on the fact that Dr.
Cohen’s treatment notes showed no cancellations by Liberi to
support his finding that Dr. Cohen’s opinion on Liberi’s
impairments’ influence on her probable employment attendance
record lacked objective support. See Doc. No. 8-1 at 17. Liberi
identifies no legal error in the ALJ’s reasoning on this point,
and I find none.
Third, in another one-sentence argument, Liberi contends
that “[b]y giving greater weight to the opinion of Dr. Jonas . .
., the ALJ erroneously acted in contradiction to the
Commissioner’s applicable regulations stating that greater
weight is to be given to the opinions of treating and examining
sources than to those of non-examining reviewing sources.” Doc.
No. 8-1 at 17–18. Liberi says nothing at all, however, about the
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ALJ’s application of the factors set out in 20 C.F.R. §§
404.1527(c)(2)–(6), 416.927(c)(2)–(6), which ALJs are directed
to use when weighing medical opinions. Thus, Liberi’s argument
is nothing more than an assertion that the opinions of treating
sources are always unconditionally entitled to greater weight
than the opinions of non-examining sources. But that is not the
law. See, e.g., id. § 404.1527(c)(2) (applying set of factors
“in determining the weight to give the medical opinion” of a
treating source when the source’s opinion is not given
controlling weight). Because Liberi does not challenge the ALJ’s
application of the factors set out in 20 C.F.R. §§
404.1527(c)(2)–(6), 416.927(c)(2)–(6), and because I find no
error in the ALJ’s analysis, her third argument fails.
Finally, I cannot agree with Liberi’s fourth argument,
i.e., that the ALJ failed to give adequately specific reasons
for discounting Dr. Cohen’s opinion. To the contrary, the ALJ
covered nearly all of the factors listed in 20 C.F.R. §§
404.1527(c)(2)–(6), 416.927(c)(2)–(6) and provided extensive
citations to the record. Tr. at 446–53. Furthermore,
notwithstanding Liberi’s argument to the contrary, the ALJ’s
decision in this appeal is far more specific than the decision
that was reversed in Liberi’s first appeal.
Moreover, to the extent that Liberi faults the ALJ for his
reliance upon the lack of evidence of missed appointments in Dr.
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Cohen’s treatment notes, that negative evidence is very
different from the negative evidence that Magistrate Judge
Johnstone found problematic in Liberi’s first appeal. There,
Magistrate Judge Johnstone disallowed the ALJ’s reliance on “the
absence of any recommendation by Dr. Cohen that Liberi engage in
more frequent treatment and/or a different kind of treatment” as
an unqualified assessment of treatment decisions by the ALJ.
Liberi, 2017 WL 4773336, at *8. Here, by contrast, the ALJ
considered the lack of notations indicating that Liberi missed
or rescheduled any of her appointments with Dr. Cohen by
explaining at Liberi’s hearing that he had “read many medical
records in [his] lifetime and they always say a no-show or a
cancellation” when a patient misses an appointment. Tr. at 502.
Unlike the negative evidence the ALJ relied on in his first
decision, the negative evidence he relied on in his second
decision did not put him in the position of making “an appraisal
of a medical professional’s decisions as to the form or
frequency of the treatment that he has provided.” Liberi, 2017
WL 4773336, at *8.
In sum, because the ALJ provided good reasons for affording
little weight to Dr. Cohen’s opinions, nothing in the ALJ’s
evaluation of those opinions gives me a reason to remand this
matter.
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b. 	Dr. Vallery
In yet another undeveloped argument, Liberi claims that the
ALJ erred by giving insufficient weight to Dr. Vallery’s opinion
on Liberi’s capacity for regular job attendance. See Doc. No. 8-
1 at 16. After acknowledging Dr. Vallery’s status as a non-
treating examining source, the ALJ noted that she “provide[d] no
reference either to her own examination findings nor the record
in support for” the proposition that Liberi “would have some
difficulty maintaining consistent attendance due to anxiety,”
Tr. at 451, and that her “opinion [was] not sufficiently
detailed to determine the amount of difficulty” Liberi would
face in this regard, Tr. at 452. The ALJ concluded, “Given that
this portion of Dr. Vallery’s opinion is not well supported, is
inconsistent with the record, and lacks detail as to the extent
of the limitation, [I have] given it little weight.” Tr. at 452.
Although Liberi claims that the ALJ erred by discounting
Dr. Vallery’s opinion, she stops with that bare assertion, and
says nothing to call into question the validity of the ALJ’s
analysis. Similar to his analysis of Dr. Cohen’s opinion, the
ALJ considered the factors set out in 20 C.F.R. §§
404.1527(c)(2)–(6), 416.927(c)(2)–(6) and provided substantial
evidence in support of his conclusion. Tr. at 450–51. The ALJ’s
evaluation of Dr. Vallery’s opinion provides no grounds for
remanding this matter.
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c. 	Dr. Jonas
Liberi also claims that the ALJ gave too much weight to the
opinion of Dr. Jonas. But rather than pointing to a specific
error in the ALJ’s evaluation of Dr. Jonas’s opinions, Liberi
rests her claim on Dr. Jonas’s purported failure to address her
diagnosis of panic disorder with agoraphobia and offers only a
brief citation to the treating-physician rule. See Doc. No. 8-1
at 17–19. For the reasons I have already explained, neither of
those arguments has merit. Furthermore, as with his evaluation
of the opinions of Drs. Cohen and Vallery, the ALJ’s evaluation
of Dr. Jonas’s opinions considered the factors set out in 20
C.F.R. §§ 404.1527(c)(2)–(6), 416.927(c)(2)–(6) and rested upon
substantial evidence in the record. Tr. at 449–50. Accordingly,
the ALJ’s evaluation of Dr. Jonas’s opinions provides no grounds
for remanding this matter. In sum, when the ALJ evaluated the
opinions of Drs. Cohen, Vallery, and Jonas, he considered the
relevant factors, supported his evaluations with substantial
evidence, and committed no reversible error.
2. 	Evaluating Liberi’s Statements
The principles that guide an ALJ’s evaluation of a
claimant’s statements about her symptoms are set out in Social
Security Ruling (“SSR”) 16-3p, 2016 WL 1119029 (Mar. 16, 2016).
SSR 16-3p explains that “an individual’s statements of symptoms
alone are not enough to establish the existence of a physical or
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23
mental impairment or disability” and goes on to outline a “two-
step process” for evaluating a claimant’s statements. SSR 16-3p,
2016 WL 1119029, at *2.
First, 	[the 	ALJ] 	must 	consider 	whether 	there 	is 	an
underlying 	medically 	determinable 	physical 	or 	mental
impairment(s) 	that 	could 	reasonably 	be 	expected 	to
produce an individual’s symptoms, such as pain. Second,
once an underlying physical or mental impairment(s) that
could reasonably be expected to produce an individual’s
symptoms 	is 	established, 	[the 	ALJ] 	evaluate[s] 	the
intensity and persistence of those symptoms to determine
the 	extent 	to 	which 	the 	symptoms 	limit 	an 	individual’s
ability to perform work-related activities . . . .
Id. at *2. At the second step, when
considering 	the 	intensity, 	persistence, 	and 	limiting
effects 	of 	an 	individual’s 	symptoms, 	[the 	ALJ 	should]
examine the entire case record, including the objective
medical 	evidence; 	an 	individual’s 	statements 	about 	the
intensity, 	persistence, 	and 	limiting 	effects 	of
symptoms; 	statements 	and 	other 	information 	provided 	by
medical 	sources 	and 	other 	persons; 	and 	any 	other
relevant evidence in the individual’s case record.
Id. at *4. An ALJ should “not disregard an individual’s
statements about the intensity, persistence, and limiting
effects of symptoms solely because the objective medical
evidence does not substantiate the degree of impairment-related
symptoms alleged by the individual.” Id. at *5. Finally, an ALJ
should also consider the following seven factors when evaluating
a claimant’s statements about her symptoms: (1) her “daily
activities;” (2) “[t]he location, duration, frequency, and
intensity of . . . [her] symptoms;” (3) “[f]actors that
precipitate and aggravate the symptoms;” (4) “[t]he type,
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24
dosage, effectiveness, and side effects of any medication [she]
takes or has taken to alleviate . . . [her] symptoms;” (5)
“[t]reatment, other than medication, [she] receives or has
received . . . ;” (6) “[a]ny measures other than treatment [she]
uses or has used to relieve . . . [her] symptoms . . . ;” and
(7) any other relevant factors. Id. at *7; accord 20 C.F.R. §§
404.1529(c)(3), 416.929(c)(3).
In his decision, the ALJ described Liberi’s statements
about her symptoms this way:
The 	claimant 	testified 	that 	her 	mental 	impairments
prevent 	her 	from 	working. 	She 	said 	that 	she 	wakes 	up
with 	a 	sense 	of 	overwhelming 	anxiety, 	fear 	of 	the
unknown, 	and 	a 	lack 	of 	appetite. 	She 	says 	that 	some
nights she is unable to sleep at all due to her symptoms.
She indicated that she has periods of total agoraphobia
where 	she 	is 	fearful 	of 	leaving 	the 	safety 	of 	her 	home
at 	all 	and 	even 	walking 	to 	her 	mailbox 	is 	a 	challenge.
She said that due to her symptoms she would be unable to
maintain a regular full-time work schedule.
Tr. at 446 (citation omitted). After “find[ing] that [Liberi’s]
medically determinable impairments could reasonably be expected
to cause [her] alleged symptoms,” Tr. at 446, the ALJ concluded
“that [her] testimony regarding her symptoms and limitations
[was] entirely consistent with the evidence in the record,” Tr.
at 448. In support of that determination, the ALJ pointed to
“[t]he primarily benign mental status examinations performed
during the relevant period[,]” “the primarily conservative
nature of [Liberi’s] medical treatment during the relevant
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25
period[,]” and her “failure to follow treatment recommendations
. . . . ” Tr. at 448. Furthermore, the ALJ noted that Liberi’s
“own reports regarding her activities of daily living[,]
suggest[ed] an ability on her part to interact socially in
excess of the ability [she] testified to at [her] hearing.” Tr.
at 449.
Liberi argues that the ALJ erred in evaluating her
statements about her symptoms because he disregarded her
statements as unsubstantiated by the objective medical evidence
presented, “failed to explore the issue of whether [she] had
indeed sought treatment with other providers that were covered
by Medicaid through her testimony at the hearing,” neglected to
correlate her emergency room visit to the “exacerbation of her
symptoms,” and
failed 	to 	consider, 	as 	required 	by 	SSR 	16-3p, 	that
symptoms, 	especially 	those 	due 	to 	mental 	impairments,
may increase or decrease at various times, and thus that
reports 	of 	activities 	of 	daily 	living 	may 	at 	times 	be
inconsistent with [her] ability to sustain activities on
a consistent basis in a workplace setting.
Doc. No. 8-1 at 21. I do not agree.
First, Liberi’s claim that the ALJ disregarded her
statements because they were not substantiated by the objective
medical evidence is simply incorrect.11 As I have already noted,
11 Liberi prefaces her argument on this point with a quote from
the section of the ALJ’s decision in which he explained why he
gave more weight to Dr. Jonas’s opinions than he gave to the
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the ALJ relied upon at least two other factors listed in SSR 16-
3p: the nature of the treatment Liberi has received and her
daily activities. Thus, Liberi’s first argument fails.
Her second argument is no more persuasive. One of the
reasons the ALJ gave for discounting Liberi’s statements was his
finding that “from February 2017 through February 2018, [she]
did not receive any ongoing treatment for [her] condition.” Tr.
at 448. He explained further that Liberi
testified 	that 	she 	remained 	in 	phone 	contact 	with 	Dr.
Cohen 	and 	he 	continued 	to 	provide 	refills 	of 	her
medications, 	but 	there 	were 	no 	office 	visits 	and 	no
evidence 	of 	any 	medication 	adjustments 	during 	this
period. 	[She] 	testified 	that 	the 	lack 	of 	treatment 	was
related to the cost of visits with Dr. Cohen . . . [and]
reported that she does have Medicaid coverage and thus,
could 	have 	sought 	treatment 	with 	another 	provider
although there is no evidence she did so.
Tr. at 448 (citation omitted). Liberi claims that the ALJ
committed reversible error by failing to ask her whether she had
sought treatment with a provider who accepted Medicaid patients
when she was not seeing Dr. Cohen. I disagree.
SSR 16-3p explains that “if the frequency or extent of the
treatment sought by an individual is not comparable with the
degree of the individual’s subjective complaints, . . . [an ALJ]
opinions of Drs. Vallery and Cohen. The sentence she quoted had
nothing to do with the ALJ’s evaluation of her statements about
her symptoms, however, and was not an indication that the ALJ
discounted her statements solely because of the lack of
substantiation from the objective medical evidence.
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may find the alleged intensity and persistence of an
individual’s symptoms are inconsistent with the overall evidence
of record.” SSR 16-3p, 2016 WL 1119029, at *8. At the hearing,
an ALJ “may need to . . . ask why [the claimant] has not . . .
sought treatment in a manner consistent with his or her
complaints.” Id. at *8. Notwithstanding Liberi’s assertion to
the contrary, SSR 16-3p does not require the ALJ to ask Liberi
whether she had sought treatment with providers who accept
Medicaid patients. Moreover, Liberi was represented by counsel
at her hearing, so if Liberi had sought treatment with providers
who accept Medicaid patients, which she does not allege she did,
her counsel could have elicited that fact from her at her
hearing. Accordingly, I am not persuaded by Liberi’s second
argument.
Liberi’s third argument is that the ALJ “erroneously found
that she had never reported to an emergency room due to
exacerbation of her symptoms.” Doc. No. 8-1 at 21 (emphasis
added). To the contrary, the ALJ acknowledged that Liberi
“reported to the emergency room on one occasions [sic] due to
symptoms and it was because Dr. Cohen was on vacation.
Otherwise, the claimant has not reported to the emergency room
or required psychiatric hospitalization.” Tr. at 447 (citation
omitted). Thus, Liberi is mistaken in asserting that the ALJ
found that she had never reported to the emergency room; he
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found that she went to the emergency room once, which is exactly
the number of emergency room visits she alleges in her
memorandum of law. See Doc. No. 8-1 at 21. Because the record
contradicts the factual basis relied upon for claimant’s third
argument, that argument fails.
Finally, Liberi claims that the ALJ erred by failing to
consider that mental-health symptoms “may increase or decrease
at various times . . . 	.” Doc. No. 8-1 at 21. The ALJ expressly
stated, however, that Liberi “reported waxing and waning periods
of anxiety during the relevant period,” Tr. at 448, clearly
negating Liberi’s contrary assertion. Therefore, her fourth
argument also fails.
In sum, nothing in the ALJ’s evaluation of Liberi’s
statements about her symptoms runs afoul of the principles set
out in SSR 16-3p. Thus, Liberi’s second claim gives me no
grounds for remanding this matter.
IV. CONCLUSION
Because the ALJ has committed neither a legal nor a factual
error in evaluating Liberi’s claims, see Manso-Pizarro, 76 F.3d
at 16, I deny her motion for an order reversing the
Commissioner’s decision (Doc. No. 8), and I grant the
Commissioner’s motion for an order affirming his decision (Doc.
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No. 9). The clerk of the court shall enter judgment in favor of
the Commissioner and close the case.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
December 2, 2019
cc: 	D. Lance Tillinghast, Esq.
Rami M. Vanegas, Esq.
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