UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Melissa Lynn Liberi

v. Case No. 16-cv-476-JL Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

REPORT AND RECOMMENDATION

Pursuant to

(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,

, and for supplemental security income, or SSI, under Title

XVI,

. 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 . . . .

(g) (setting out the standard of review for DIB

decisions); see also

(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,

(1st Cir. 1996) (per

curiam) (quoting Sullivan v. Hudson,

(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,

(S.D.N.Y. 1991) (citing Levine v. Gardner,

(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,

(1st Cir. 1980) (quoting Richardson v. Perales,

(1971)). But, “[i]t is the responsibility of the

2 [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,

(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,

(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,

(quoting

Rodriguez v. Sec’y of HHS,

(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 number of diagnoses for mental

impairments, including mood disorder, anxiety, depression, panic

disorder without agoraphobia, panic disorder with agoraphobia,

3 rule-out posttraumatic stress disorder (“PTSD”),1 and generalized

anxiety disorder with panic. She has been treated with various

medications2 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

1 “‘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,

, 916 n.3 (8th Cir. 2012) (citing United States v. Grape,

, 593 n.2 (3d Cir. 2008)). 2 Specifically, Liberi has been given prescriptions for Effexor, Klonopin, Prozac, Viibryd, Lamotrigine, Paxil, Hydroxyzine, Paroxetine, Alprazolam, Citalopram, Xanax, Alprazole, and Celaxa.

4 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

3 “RFC” is an acronym for “residual functional capacity,” which is a term of art that means “the most [a claimant] can still do despite [her] limitations.”

& 416.919.

5 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!”

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

6 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 number 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

4 These tallies do not add up to 16 because Dr. Cohen neglected to offer an opinion on one of the abilities listed in the questionnaire.

7 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 semi-

skilled, 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

8 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]

9 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 numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

Tr. 22, 23, 28 29. The ALJ concluded by finding that Liberi was

not disabled because she was capable of performing the jobs of

price marker, office helper, and housekeeper.

III. Discussion

A. The Legal Framework

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under

a disability. See

(a)(1)(A)-(D). To be eligible

for supplemental security income, a person must be aged, blind,

or disabled, and must meet certain requirements pertaining to

income and assets. See

(a). The question in

this case is whether the ALJ correctly determined that Liberi

was not under a disability from March 1, 2010, through October

10 23, 2015.

To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI benefits, an ALJ

is required to employ a five-step process. See

(DIB) & 416.920 (SSI).

The 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] “residual functional capacity” 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 residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Seavey v. Barnhart,

(1st Cir. 2001) (citing

).

The claimant bears the burden of proving that she is

disabled. See Bowen v. Yuckert,

(1987). She

must do so by a preponderance of the evidence. See Mandziej v.

Chater,

(D.N.H. 1996) (citing Paone v.

Schweiker,

(D. Mass. 1982)). Finally,

[i]n assessing a disability claim, the [Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported

11 by the testimony of the [claimant] or other witness; and (3) the [claimant]’s educational background, age, and work experience.

Mandziej,

(citing Avery v. Sec’y of HHS,

(1st Cir. 1986); Goodermote v. Sec’y of HHS,

(1st Cir. 1982)).

B. Liberi’s Claims

Liberi claims that the ALJ erred by: (1) crafting her RFC

in reliance upon his own lay interpretation of raw medical data;

(2) failing, at one or more steps in the sequential evaluation

process, to consider her panic disorder with agoraphobia as an

impairment separate from her generalized anxiety disorder; and

(3) failing to give good reasons for discounting Dr. Cohen’s

opinions. While it is a close call, Liberi’s third claim of

error is persuasive, and dispositive.

Under the applicable regulations, the opinions of a

treating source such as Dr. Cohen are entitled to controlling

weight if they are “well-supported by medically acceptable

clinical and laboratory diagnostic techniques and [are] not

inconsistent with the other substantial evidence in [a

claimant’s] case record.”

(c)(2) &

416.927(c)(2). When an ALJ does not give controlling weight to

a treating source’s opinion, he must still determine how much

12 weight to give that opinion by considering the following

factors: (1) the length of the treatment relationship and the

frequency of examination; (2) the nature and extent of the

treatment relationship; (3) the supportability of the opinion;

(4) the consistency of the opinion with the record as a whole;

(5) the specialization of the source offering the opinion; and

(6) any other relevant factors. See §§ 404.1527(c)(2)-(6) &

416.927(c)(2)-(6). After an ALJ performs the analysis described

above, “[i]n many cases, a treating source’s opinion will be

entitled to the greatest weight and should be adopted, even if

it does not meet the test for controlling weight.” Hunt v.

Colvin, No. 16-cv-159-LM,

, at *7 (D.N.H. Dec. 5,

2016) (quoting Social Security Ruling (“SSR”) 96-2p,

, at *4 (S.S.A. July 2, 1996)). Finally, an ALJ must give

“good reasons in [his] decision for the weight [he] give[s] [a

claimant’s] treating source’s opinion.”

(c)(2) & 416.927(c)(2).

To meet the “good reasons” requirement, the ALJ’s reasons must be both specific, see Kenerson v. Astrue, No. 10-cv-161-SM,

, at *4 (D.N.H. May 20, 2011) (citation omitted), and supportable, see Soto–Cedeño v. Astrue,

(1st Cir. 2010). In sum, the ALJ’s reasons must “offer a rationale that could be accepted by a reasonable mind.” Widlund v. Astrue, No. 11-cv-371-JL,

, at *9 (D.N.H. Apr. 16, 2012) (citing Lema v. Astrue, C.A. No. 09–11858,

, at *4 (D.

13 Mass. Mar. 21, 2011)), report and recommendation adopted by

(D.N.H. May 14, 2012).

Jenness v. Colvin, No. 15-cv-005-LM,

, at *6

(D.N.H. Aug. 27, 2015).

In his Mental Impairment Questionnaire, Dr. Cohen found,

among other things, that Liberi was unable to meet competitive

standards for getting along with co-workers or peers without

unduly distracting them or exhibiting behavioral extremes, and

that she had no useful ability to work in coordination with or

proximity to others without being unduly distracted. Yet, the

ALJ found that Liberi had the capacity for occasional

interaction with coworkers. In addition, Dr. Cohen opined that

Liberi had a “complete inability to function independently

outside the area of [her] home,” Tr. 419, 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.

As noted, the ALJ gave Dr. Cohen’s opinions little weight.

He gave the following explanation for discounting those

opinions:

Dr. Cohen’s opinion is inconsistent with the medical evidence of record and his own progress notes. Dr. Cohen’s opinion is so extreme that it would indicate the need for more extensive therapy, greater than the once a month frequency she was seen by Dr. Cohen.

14 There is no indication in Dr. Cohen’s treatment notes that he recommended or believed that the claimant should have additional counseling and/or psychotherapy outside the monthly visit with him.

Tr. 27. While the ALJ framed his rejection of Dr. Cohen’s

opinions in terms of inconsistency with the record, see

(c)(4) & 416.927(c)(4), the Acting

Commissioner goes a bit further, suggesting that the ALJ’s

rejection of Dr. Cohen’s opinion was also based upon the

frequency with which Dr. Cohen examined Liberi and the nature

and extent of the treatment he provided her, see §§

404.1527(c)(2)(i)-(ii) & 416.927(c)(2)(i)-(ii). Claimant argues

that the ALJ erred by basing his evaluation of Dr. Cohen’s

opinions upon his own lay determination of the course of

treatment that would be appropriate for a patient with the

limitations that Dr. Cohen ascribed to her. That is one of

several problems with the reasons the ALJ gave for discounting

Dr. Cohen’s opinions.

As a preliminary matter, the ALJ’s explanation for the

weight he gave Dr. Cohen’s opinions is inadequately specific.

As Judge McCafferty explained in Jenness, “[a]n AJL must provide

specific reasons for assigning weight to a treating source’s

opinion because specific reasons allow subsequent reviewers to

know the weight the adjudicator gave to the treating source’s

15 medical opinion and the reasons for that weight.”

, at *7 (internal quotation marks, brackets, and other

alterations omitted) (quoting Kenerson,

, at *4;

citing SSR 96–2p,

, at *5). Here, there are

several ways in which the ALJ’s explanation lacks the necessary

level of specificity.

First, like the explanation found wanting in Jenness, the

ALJ’s explanation here is a “generic criticism[] seemingly

directed to Dr. [Cohen’s] statement as a whole,”

, at *7, rather than a weighing of any of the specific

opinions expressed in Dr. Cohen’s questionnaire. A failure to

tie an explanation to a specific opinion presents a significant

impediment to meaningful review. See

Second, while the ALJ said that “Dr. Cohen’s opinion is

inconsistent with the medical evidence of record and his own

progress notes,” Tr. 27, he did “not indicate which of Dr.

[Cohen’s] opinions [was] inconsistent with [the medical evidence

and] his treatment notes,” Jenness,

, at *7.

That, too, is an impediment to meaningful review. See

In addition to indicating which particular opinion is

inconsistent with the record, an ALJ should also point to the

specific part of the record that is purportedly inconsistent

16 with an opinion he is discounting. See Jenness,

, at *7 (faulting an ALJ for referring to treatment notes

in general rather than “identify[ing] the [specific] treatment

notes to which he [was] referring”); see also Willey v. Colvin,

No. 15-cv-368-JL,

, at *5 (D.N.H. Apr. 7, 2016)

(rejecting ALJ’s determination that claimant’s “reported daily

activities indicate[d] that she would be able to tolerate at

least light lifting and light exertion sitting and standing

requirements” when ALJ “did not point to any specific daily

activities that demonstrate[d] [claimant’s] capacity to meet

those exertional requirements”). Indeed, the typical scenario

in which a court affirms an ALJ’s decision to discount a

treating source’s opinion on grounds of inconsistency takes the

form of an opinion that is directly contradicted by affirmative

medical evidence.

For example, Judge Barbadoro had this to say when

determining that an ALJ had permissibly discounted the opinion

of a physician who had treated an applicant claiming to be

disabled by fibromyalgia:

The ALJ observed that Dr. Kunz’s opinion was inconsistent with the symptoms claimant reported to her neurologist during an office visit about five months after Dr. Kunz rendered his opinion. And, indeed, the note generated by that office visit does not document symptoms consistent with Dr. Kunz’s

17 opinion, and it does not even mention fibromyalgia under the heading “problems” or the heading “diagnoses.”

Lonek v. Berryhill, No. 16-cv-212-PB,

, at *6

(D.N.H. June 12, 2017); see also Walter v. Colvin, No. 15-cv-

194-LM,

, at *9 (D.N.H. Feb. 18, 2016) (“[T]he ALJ

cites progress notes authored by Laurent documenting pleasant

cooperative behavior, which is inconsistent with Dr. Ford’s

opinions that Walter has difficulties getting along with others

and maintaining socially appropriate behavior. Thus, the ALJ

gave a good reason, rooted in the regulations and based on

substantial evidence, for discounting Dr. Ford’s opinion.”);

Estabrook v. Colvin, No. 13-cv-478-PB,

, at *13

(D.N.H. Oct. 21, 2014) (“On the issue of physical exertion, the

ALJ found that Dr. Guiry’s December 2011 opinion was more

consistent with the record as a whole. Specifically, the ALJ

concluded that the objective evidence showed Estabrook had full

strength in her extremities, no swelling or joint tenderness,

normal gait, no weakness, the ability to heel and toe walk

without pain or difficulty, full range of motion of the back,

and normal finger dexterity, which were all inconsistent with a

limited ability to stand, walk, and sit. Therefore, the

objective evidence was more consistent with the physical

18 exertion limits listed in Dr. Guiry’s [less restrictive]

December 2011 opinion than in her prior two [more restrictive]

opinions.”).

This case presents a scenario that is very different from

those in Lonek, Walter, and Estabrook. Rather than pointing to

affirmative medical evidence in Dr. Cohen’s treatment notes (or

anywhere else in the record) that is inconsistent with Dr.

Cohen’s opinions, the ALJ based his decision to discount Dr.

Cohen’s opinions on negative evidence, i.e., the lack of a

recommendation by Dr. Cohen that Liberi pursue more or different

treatment in the form of “additional counseling and/or

psychotherapy outside the monthly visit with him,” Tr. 27.

While there may be cases in which a treating source’s opinion is

properly rejected on inconsistency grounds due to negative

evidence in the claimant’s treatment records, this is not one of

them. For her part, the Acting Commissioner analogizes this

case to Baron v. Berryhill, No. 16-cv-308-JL,

,

at *9 (D.N.H. Aug. 21, 2017), but that case too different from

this one to serve as a useful analog.

In Baron, the ALJ discounted a treating physician’s opinion

for three reasons, including the “limited scope” of the

physician’s treatment of the claimant,

, at *9.

19 Judge Laplante explained his determination that substantial

evidence supported the ALJ’s evaluation of the treating

physician’s opinion this way:

[T]he ALJ noted the lack of evidence of “any significant treatment undertaken to address the claimant’s [back] pain.” Indeed, Dr. Niegisch’s treatment notes document little if any treatment other than pain medication, and also document Dr. Niegisch’s concerns — backed up by both test results and statements from Baron herself — that she was not even taking all of her prescribed pain medication. Dr. Niegisch also reported Baron’s resistance to engaging in formal pain management treatment. And, as noted above, when Dr. Niegisch opined that Baron was suffering from low back pain that had lasted or could be expected to last at least twelve months, it had been 15 months since Baron had last complained about, or he had provided treatment for, Baron’s back condition.

(citation to the record and footnote omitted). Here, by

contrast, Liberi began treating with Dr. Cohen approximately 16

months before he completed his questionnaire. He saw her more

than a dozen times, and his treatment notes indicate that he was

treating her by monitoring and adjusting the dosages of the

medications he was prescribing her. Thus, this is not a case

like Baron in which a treating source offered an opinion on an

impairment that he had not treated for an extended period of

time.

Rather, the ALJ’s rejection of Dr. Cohen’s opinions rests

on a more narrow form of negative evidence, i.e., the absence of

20 any recommendation by Dr. Cohen that Liberi engage in more

frequent treatment and/or a different kind of treatment. With

respect to that “evidence,” the court tends to agree with

claimant that the ALJ seems to have strayed outside his area of

expertise.

It is well established that an ALJ is not qualified to base

an RFC on the interpretation of raw medical data. See Schwarz

v. Berryhill, No. 16-cv-163-SM,

, at *6 (D.N.H.

Aug. 30, 2017) (citing Childers v. Colvin, No. 14-cv-270-JL,

, at *2 (D.N.H. July 17, 2015)). If an ALJ is

not qualified to interpret raw medical data in functional terms,

it is difficult to see how an ALJ is qualified to discount a

treating source’s opinion based not upon an absence of treatment

but, rather, on an appraisal of a medical professional’s

decisions as to the form or frequency of the treatment that he

has provided. As an illustration of that point, the Acting

Commissioner refers to “the conservative treatment that Dr.

Cohen offered the Plaintiff for her mental health impairments,”

Resp’t’s Mem. of Law (doc. no. 13-1) 17, but the court, which is

no more a medical expert than the Acting Commissioner (or an

ALJ), is far from certain that the regimen of medication that

Dr. Cohen prescribed is a more conservative form of treatment

21 than the “additional counseling and/or psychotherapy” that the

ALJ referred to in his decision.5 In short, the mere fact that

Dr. Cohen did not suggest “additional counseling and/or

psychotherapy” for Liberi, as opposed to pursuing what appears

to have been a medicine-based approach to treating her mental

impairments, is not a good reason for discounting his opinions.

The Acting Commissioner concludes her memorandum of law

with the following argument:

Plaintiff does not argue how the ALJ’s assessment of the opinion was harmful. Presumably, she suggests that the ALJ should have adopted Dr. Cohen’s opinion as her RFC, which would have rendered her disabled. She fails, however, to point to record evidence that contradicts the ALJ’s discussion of the evidence or that would support Dr. Cohen’s extreme limitations.

. . . .

Plaintiff’s argument with respect to the ALJ’s compliance with the “good reasons” requirement fails. In addition, she fails to show that Dr. Cohen’s treatment notes support the extremity of the limitations in the psychiatrist’s opinion. Even if the ALJ failed to comply with the procedural requirements of evaluating the treating psychiatrist’s opinion, which the [Acting] Commissioner does not

5 While the Acting Commissioner endorses the ALJ’s reliance upon Dr. Cohen’s failure to suggest “additional counseling and/or psychotherapy” as a basis for discounting his opinions, she does not mention the ALJ’s finding that Liberi “report[ed] that she is unable to see her therapist any more than once a month due to financial constraints.” Tr. 24. It is difficult to see how a treating source’s failure to suggest treatment that a claimant cannot afford is a good reason for discounting that source’s opinion.

22 concede, remand in this case would be futile where there is no evidence to support the conclusion that Plaintiff’s mental health impairments were disabling within the meaning of the Act.

Resp’t’s Mem. of Law (doc. no. 13-1) 17, 18 (citing Shinseki v.

Sanders,

(2009)). That argument is somewhat

puzzling.

First, it is no mystery how claimant was harmed by the

ALJ’s failure to give more weight to Dr. Cohen’s opinions. Dr.

Cohen opined that Liberi had a “complete inability to function

independently outside the area of [her] home.” Tr. 419. It is

self-evident that such a limitation would preclude all work.

Dr. Cohen also opined that Liberi would miss more than four days

of work per month due to her mental impairments. The VE

testified that with regard to missing work, “the customary

tolerance would be no more than one [absence] per month.” Tr.

83. Thus, Dr. Cohen’s second limitation would also preclude all

work. Because Dr. Cohen gave at least two opinions that, if

credited, would necessarily lead to a determination that Liberi

was disabled, it is abundantly clear that she was harmed by the

ALJ’s assessment of Dr. Cohen’s opinions.6

6 In addition to the two opinions noted above, Dr. Cohen also opined that Liberi was unable to perform two functions necessary for unskilled work and could not meet competitive standards in five other areas.

23 Second, while the Acting Commissioner criticizes claimant

for failing to point to record evidence that contradicts the

ALJ’s discussion of the evidence, that criticism presuppose a

traditional discussion of affirmative medical evidence by the

ALJ, such as a diagnostic finding by Dr. Cohen that was

inconsistent with his opinions. But, as the court has already

explained, the ALJ relied upon negative evidence, i.e., Dr.

Cohen’s failure to recommend “additional counseling and/or

psychotherapy.” Thus, it is not at all clear what kind of

evidence the Acting Commissioner thinks would be necessary to

contradict the ALJ’s discussion. Moreover, shifting from

consistency, see

(c)(4) & 416.927(c)(4), to

length of the treatment relationship and frequency of

examination, see §§ 404.1527(c)(2)(i) & 416.927(c)(2)(i), the

fact that Dr. Cohen saw Liberi monthly, which the ALJ noted when

explaining his decision to discount Dr. Cohen’s opinions, would

seem to bolster rather than undermine the reliability of Dr.

Cohen’s opinions.

Third, in the second paragraph of her argument, the Acting

Commissioner appears to veer into the realm of supportability

when she criticizes claimant for “fail[ing] to show that Dr.

Cohen’s treatment notes support the extremity of the limitations

24 in [his] opinion,” Resp’t’s Mem. of Law (doc. no. 13-1) 18.

With respect to supportability, the applicable regulations

provide, in pertinent part:

The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight [the Social Security Administration (“SSA”)] will give that opinion. The better an explanation a source provides for an opinion, the more weight [the SSA] will give that opinion.

(c)(3) & 416.927(c)(3). Here, the

questionnaire that Dr. Cohen completed asked him to describe the

clinical findings that demonstrated the severity of Liberi’s

mental impairments and symptoms. He did so, writing:

Melissa can appear well composed but always has an undercurrent of anxiety. More recently, she has been far more agoraphobic [and] avoidant of people. She is easily triggered into an overwhelming panic attack when stressed.

Tr. 414. The questionnaire also asked Dr. Cohen to identify

Liberi’s signs and symptoms. He did so, with annotations. See

Tr. 415. Finally, the questionnaire asked Dr. Cohen to describe

any additional reasons why Liberi would have difficulty working

at a regular job on a sustained basis. He did so, writing: “She

cannot leave her house alone. Need[s] physical support of a

close person to get out of [her] house. Anxiety attending any

function.” Tr. 419. Based upon the foregoing, to the extent

25 that the Acting Commissioner is arguing that Dr. Cohen’s

opinions are inadequately supported, her argument is not

supported by substantial evidence.

The Acting Commissioner winds up by arguing that remand

would be futile because “there is no evidence to support the

conclusion that [Liberi’s] mental health impairments were

disabling within the meaning of the [Social Security] Act.”

Resp’t’s Mem. of Law (doc. no. 13-1) 18. But Dr. Cohen’s

questionnaire expresses several specific opinions that, if

credited, would be evidence that Liberi is unable to work.

That, in turn, is evidence that supports a conclusion that her

mental health impairments were disabling. So, the Acting

Commissioner’s argument, as stated, fails.

However, if the Acting Commissioner’s argument is not that

there is no evidence to support a finding of disability but,

rather, that there is no evidence that would allow the ALJ to

give significant weight to Dr. Cohen’s opinions, that argument

also fails.

The regulations provide that, as a general rule, the

opinions of treating sources are entitled to more weight than

opinions from sources who merely examine a claimant or sources

who neither treat nor examine a claimant. See

404.1527(c)(1)-(2) & 416.927(c)(1)-(2). Dr. Cohen was a

treating source.

With respect to the length of the treatment relationship

and the frequency of examination, the regulations provide that

“[g]enerally, the longer a treating source has treated [a

claimant] and the more times [the claimant has] been seen by a

treating source, the more weight [the SSA] will give to the

source’s medical opinion.”

(c)(2)(i) &

416.927(c)(2)(i). Dr. Cohen treated Liberi for 16 months before

rendering the opinions at issue, and he saw her once a month for

five months before rendering those opinions.

With respect to the nature and extent of the treatment

relationship, the regulations provide that “[g]enerally, the

more knowledge a treating source has about [a claimant’s]

impairment(s) the more weight [the SSA] will give to the

source’s medical opinion.”

(c)(2)(ii) &

416.927(c)(2)(ii). Dr. Cohen prescribed multiple medications

for Liberi’s mental impairments and frequently adjusted her

dosages, which demonstrates knowledge of her impairments.

With respect to supportability, the regulations provide

that “[t]he more a medical source presents relevant evidence to

support an opinion . . . the more weight [the SSA] will give

27 that opinion.”

(c)(3) § 416.927(c)(3). As

noted above, Dr. Cohen’s questionnaire presents clinical

findings, medical signs, and narrative explanations.

Finally, with respect to specialization, the regulations

provide that the SSA will “generally give more weight to the

opinion of a specialist about medical issues related to his or

her area of specialty than to the opinion of a source who is not

a specialist.”

(c)(5) & 416.927(c)(5).

Dr. Cohen was a psychiatrist rendering opinions on Liberi’s

mental impairments.

While the evidence does not compel a determination that Dr.

Cohen’s opinions are entitled to great weight, they surely do

not preclude such a determination. That is enough to scuttle

the Acting Commissioner’s apparent argument that there is no

evidence to support a determination that Dr. Cohen’s opinions

are entitled to any more than the “little weight” they were

given by the ALJ.

In sum, the ALJ did not give good reasons for discounting

Dr. Cohen’s opinions, and the court is not persuaded by the

Acting Commissioner’s argument that remand would be futile.

IV. Conclusion

For the reasons given, the Acting Commissioner’s motion for

28 an order affirming her decision, document no. 13, should be

denied, and Liberi’s motion to reverse that decision, document

no. 9, should granted to the extent that this matter is remanded

to the Acting Commissioner for further proceedings, pursuant to

sentence four of

(g). The clerk of the court

should be directed to enter judgment in accordance with this

order and close the case.

Any objection to this report and recommendation must be

filed within 14 days of receipt of this notice. See Fed. R.

Civ. P. 72(b)(2). Failure to file an objection within the

specified time waives the right to appeal the district court’s

order. See United States v. De Jesús-Viera,

(1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins. Co.,

(1st Cir. 2010) (only issues fairly raised by

objections to magistrate judge’s report are subject to review by

district court; issues not preserved by such objection are

precluded on appeal).

______________________________ Andrea K. Johnstone United States Magistrate Judge

September 15, 2017

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

29