IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTINE L. MORRISON, :

: CIVIL ACTION

Plaintiff, :

:

v. :

:

JOANNE B. BARNHART, :

COMMISSIONER SOCIAL SECURITY : NO. 05-0352

ADMINISTRATION, :

:

Defendant. :

REPORT AND RECOMMENDATION

CHARLES B. SMITH

UNITED STATES MAGISTRATE JUDGE

Currently pending before the Court are cross-motions for summary judgment regarding plaintiff’s

application for Supplemental Security Income (“SSI”) under Titles XVI of the Social Security Act, 42

U.S.C. § 401, et seq. For the reasons which follow, the Court recommends that defendant’s motion be

denied and plaintiff’s motion be granted to the extent that the matter be remanded for proceedings

consistent with this Report and Recommendation.

I. PROCEDURAL HISTORY

Plaintiff, Christine L. Morrison, filed an application for SSI on May 8, 2003, alleging disability

since May 1, 2003, due to depression and physical impairments. (R. 70, 80). The state agency denied

plaintiff’s application initially on July 22, 2003. (R. 60-65). After plaintiff filed a timely Request for

Hearing, Administrative Law Judge (“ALJ”)William J. Reddy held a hearing on February 3, 2004. (R.

14, 37-59). ALJ Reddy issued a decision, dated March 26, 2004, finding plaintiff not disabled. (R. 19-27).

 Plaintiff requested review by the Appeals Council, which affirmed the ALJ’s decision on November 24,

2004, making the ALJ’s decision the final decision of the Commissioner. (R.5-7). 

Plaintiff then filed a complaint in this Court seeking judicial review of the Commissioner’s

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 1 of 19
2

decision. She now argues that the ALJ failed to afford appropriate weight to the reports of plaintiff’s

attending psychiatrist, which if properly credited would result in a finding of disability. 

II. MEDICAL HISTORY

A. Vocational Profile

Plaintiff was born on December 23, 1961, making her forty-three years old at the time of the ALJ’s

decision. (R. 70). She dropped out of school after getting to the tenth grade and has no past relevant work

experience. (R. 20, 134).

B. Medical Records

1. Pre-Onset Date Records

Although plaintiff’s alleged disability-onset date was not until May 2003, the record includes

treatment notes from as early as 2000. She reported to the Northeast Community Center for Mental Health

/Mental Retardation on August 28, 2000. (R. 388). The intake officer noted that plaintiff was the single

mother of two children and she lived with her daughter, mother and sister. She presented depressed with

impaired memory and had been isolating and withdrawing from friends and family. Plaintiff reported two

hospitalizations and a history of alcohol abuse with no rehab. She reported two past suicide attempts with

no current suicidal ideation and her GAF score at the time of admission was assessed as 40. (R. 388).

Plaintiff’s diagnosis was listed as major depression recurrent with psychosis and alcohol abuse and in

October she was evaluated for the Partial Hospitalization Program. (R. 389-390). 

On November 13, 2000, plaintiff was admitted to Friends Hospital feeling depressed and suicidal.

At the time of admission her GAF score was assessed as 20 and her score for the past year and upon

discharge on November 17 was 50. (R. 273-275). Her diagnosis was schizoaffective disorder depressed

and alcohol dependence. Plaintiff’s condition upon discharge was stable, but her prognosis was poor. (R.

274). As part of the Northeast Community Center Partial Hospital program plaintiff saw a psychiatrist

and therapist beginning on November 29, 2000, after she had been discharged from Friend’s Hospital. 

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 2 of 19
3

She admitted to alcohol abuse and had not been taking her prescribed dose of Effexor. (R. 276). 

On December 1, 2000 plaintiff reported to Friends Hospital again with depression and thinking of

killing herself. It was noted that she had not been particularly compliant with medication and had been

trying to get Social Security disability. Her GAF score on admission was 30 and at the time of discharge

on December 5 was 50. (R. 271-272). After being given medications for several days, plaintiff began to

show signs of control, relief of depression and suicidal ideation. (R. 271). Her prognosis was guarded.

(R. 272). 

According to herTreatment PlanReview/Update fromNortheast completedon December27, 2000,

which was signed by plaintiff, her therapist and the psychiatrist, plaintiff had made little or no progress

towards her goals. Her depression persisted and she continued to binge on alcohol on weekends. Her

GAF score was assessed as 40. (R. 378). At subsequent sessions with the psychiatrist, plaintiff reported

problems with incontinence that she had not yet discussed with her primary care physician. (R. 278, 280).

 According to the Treatment Plan Review/Update completed on February 6, 2001, plaintiff had still made

little or no progress towards her goals, continued to experience feelings of depression, and continued to

self medicate and abuse alcohol. Her GAF score was assessed as 42. (R. 379). 

In March and again in May, 2001, the psychiatrist noted again that plaintiff was not compliant

with her medication. (R. 279, 281). According to her Treatment Plan Review/Update dated May 3, 2001,

she had still made little or no progress and attendance and compliance with medication remained a

problem. Her GAF score was again assessed at 40. (R. 380). 

On July 2, plaintiff once again voluntarily admitted herself to Friends Hospital. She reported an

increase in auditory hallucinations yelling at her and suicidal thoughts without a plan. (R. 269). Upon

admission it was not that “she possibly had stopped taking her medication although this was never made

clear.” She also “had been drinking alcohol to excess with perhaps three 6 packs of beer nightly.” (R.

269). Upon admission her GAF was 15 with a GAF score of 55 for the past year and at discharge on July

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 3 of 19
4

10, 2001. (R. 270). 

At her next appointment with the psychiatrist at Northeast, in July, it was noted that she had

stopped taking her medication and decompensated, which resulted in her hospitalization. (R. 282). On

July 11, 2001, on her Treatment plan Review/Update her GAF score was once again listed as 40. She had

still made little or no progress, had depression and difficulty managing anger, and continued to self

medicate. (R. 381). In August and October she remained non-compliant with taking her medications as

prescribed because of weight gain, which resulted in frequent decompensation. (R. 283, 284). On October

9, 2001, she had still made little or no progress and her GAF score was 40. (R. 382). 

 Plaintiff was once again admitted to Friends Hospital on November 22, 2001, this time upon a

petition filed by her sister. Plaintiff’s sister reported that she had stopped taking her medications which

consisted of Zyprexa andEffexor,thatshe became increasingly agitated with paranoid thoughts and fought

with her, and that she drank to intoxication. Plaintiff admitted to drinking to intoxication one or twice

a week. (R. 267). Plaintiff also admitted that she had stopped her medications for several weeks prior

to admission because she felt better. (R. 267). During her course in the hospital, she was restarted on

medication and tolerated them well with no side effects. After restarting her medications, plaintiff

“improved considerably such that her thought processes were concrete but goal directed.” (R. 267). She

was discharged on November 27, 2001 on Effexor and Zyprexa. Although her GAF score upon admission

was 15, at the time of discharge and for the past year it was listed as 55. (R. 268). 

At her next appointment with her psychiatrist at Northeast, in December, the psychiatrist noted that

plaintiff’s attendance in the partial program had been poor. Plaintiff reported drinking which resulted in

her being hospitalized. She was described as having no insight and reported that in the future she would

only drink rather than mixing drinking and pills. She was taking her medication sporadically. (R. 285).

In January 2002, her psychiatrist noted that she had been non-compliant with program attendance and

although she had not taken her medication for ten days, she presented less confused. (R. 286). According

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 4 of 19
5

to the Treatment Plan Review/Update dated January 15, 2002, plaintiff’s GAF score was 40. She had still

made little or no progress and continued to experience a high level of depression and difficulty managing

anger. (R. 383). 

On April 14, 2002, plaintiff was brought to Friends Hospital by a police officer after calling 911

because she was depressed and hearing voices. (R. 265). She had been on Effexor and Zyprexa and

stopped taking them two weeks earlier. She also reported that she had been going to the Northeast MHC

but stopped a couple of months ago. Plaintiff reported having a few drinks but otherwise denied substance

abuse. Her GAF upon admission was 30 and 40 upon discharge. (R. 265-266). 

Plaintiff’s GAF Score was still 40 on May 15, 2002, and it was noted that she had made minimal

progress toward treatment goals, but continued to experience depressive symptoms and auditory

hallucinations. Her barriers to treatment were her poor attendance and resistence to taking medications

as prescribed. (R. 384). According to her next update, dated August 19, 2002, plaintiff’s GAF score was

39 and she had made little or no progress. She had not attended the program since May. Her family was

very supportive, but she tended to isolate and had a history of treatment non-compliance. (R. 386).

On September 24, 2002, plaintiff was taken to the Emergency Room at Temple Hospital after

drinking a half case of beer and taking four Xanax (although she reported to the therapist she drank 2-6

packs of beer and took four Xanax). (R. 109-152). She denied that she was trying to kill herself,

explaining that she has a 15 year old daughter who is the most important thing to her. (R. 133). She

wanted a new therapist because her old one had arranged for her to attend Northeast which she did not

want. She explained that she did not want to sit around 8 hours a day listening to people whine. Plaintiff

indicated that after going a few times she was discharged from the program for non-compliance. She

denied any suicide attempts or suicidal ideations in her life. (R. 133). 

Eight months later, on April 26, 2003, plaintiff was admitted to the Temple University Hospital

Episcopal Campus for violent behavior, talking to herself and not caring for herself. (R. 157-177). She

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 5 of 19
6

reported that she was drunk at the time and did not remember what she had done. Her diagnosis upon

admission was “mood disorder, not otherwise specified, rule out substance induced mood disorder, rule

out bipolar disorder, alcohol abuse.” Plaintiff’s GAF score was 30. (R. 157). She showed little insight

into her drinking and problems secondary to her drinking. Her prognosis was listed as “guarded because

of her history of drinking.” Upon discharge on May 1, 2003, plaintiff’s alleged date of onset, her GAF

score was 60. (R. 158). 

2. Post-Onset Date Records:

In June 2003, state agency medical expert, Thomas E. Fink, Ph.D., completed a Mental Residual

Functional Capacity Assessment of plaintiff. After considering Listings 12.04 and 12.09, Dr. Fink

concluded that plaintiff’s condition did not satisfy either listing. (R. 186-200). Dr. Fink concluded that

plaintiff’s ability to understand and remember detailed instructions, her ability to carry out detailed

instructions, to maintain attention and concentration for extended periods, and her ability to complete a

normal workday and workweek without interruptions from psychologically based symptoms and to

perform at a consistent pace without an unreasonable number and length of rest periods was moderately

limited and plaintiff had no significant limitations in any of the other areas listed. (R. 182-183). As

support for his findings, he noted plaintiff’s non-compliance, that she was drunk at various admissions and

that plaintiff was substantially improved by the time of discharge following removal of drug and alcohol

use. He also noted that she was able to perform activities of daily living including house care, cleaning,

shopping laundry, and taking public transportation. (R. 198-200, 185). He noted that she retained the

ability to understand and follow simple instructions and to perform simple routine tasks. (R. 185). 

On July 2, 2003, Hass Shafia, M.D. interviewed and performed a physical examination of plaintiff

prior to making a disability determination. (R. 201-204). Although plaintiff indicated that she had a heart

problem, urinary incontinence upon exertion and neck pain, Dr. Shafia concluded that her alleged physical

impairments were non-severe. (R. 205). The state agency therefore denied plaintiff’s claim for SSI in July

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 6 of 19
7

2003. (R. 60-65). 

Plaintiff then reported to Temple University Hospital Behavioral Health Services Crisis Response

Center, where she sought treatment from August 12 to August 15, 2003. (R. 223-264). She reported that

she was depressed and could not stay in her house because they keep people locked in the basement next

door. (R. 224). She had called the police but they did not find anything. Plaintiff reported that she would

kill her neighbor if her daughter was not in the army, but her daughter would get her in trouble. The

examiner noted that plaintiff obviously posed a threat to her neighbor. (R. 230). Her GAF was assessed

at 30. (R. 235). Plaintiff was prescribed Effexor upon discharge and referred to COMHAR. (R. 253).

Plaintifffirst reported to COMHAR where she saw Nadine E. Rogers, M.D., on September 5, 2003.

She reported a history of bipolar disorder and alcohol dependence with borderline personality disorder.

Plaintiff indicated that she had a relapse three weeks earlier with beer but since then had been sober. She

explained that part of her knows that her paranoid idea that hostages were being held next door is not true.

(R. 210). According to notes dated September 26, 2003, plaintiff did not fill her prescription written by

Dr. Rogers on September 5. Although she had some left over, plaintiff admitted she did not take the

medication regularly and had not had medications for a couple of weeks. (R. 211). The next note, dated

December 12, 2003 indicates that plaintiff had not been coming to the program and had relapsed over

Thanksgiving. She indicated that she was going to try to come everyday and to take recovery more

seriously. Plaintiff admitted that she had not taken medication faithfully enough to know if they help. She

had depressed feelings over the holidays but felt better that she came to the program. (R. 212). 

A note from January 20, 2004 indicates that plaintiff came in to get medication. She had not been

coming to program regularly and was possibly going to be transferred. She had run out of medication a

couple of weeks earlier and reported that when she is not taking the medication she gets depressed and

drinks more. She had last had alcohol one week ago. (R. 213). On that same date, Dr. Rogers completed

a Medical Assessment of Ability to Do Work Related Activities (Mental) form indicating that plaintiff’s

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 7 of 19
8

ability to follow work rules, relate to co-workers, deal with the public, use judgment, interact with

supervisors, deal with work stress, function independently, maintain attention/concentration, understand,

remember and carry out complex job instructions, understand, remember and carry out detailed but not

complex job instructions, and to demonstrate reliability was “poor or none”. She opined that plaintiff’s

ability to understand, remember and carry out simple job instructions, maintain personal appearance,

behave in an emotionally stable manner, and relate predictably in social situations was “fair”. (R. 220-

222). She indicated that plaintiff hears voices, has paranoid thoughts, is tangential, has frequent relapses

with alcohol and has blunt affect. Dr. Rogers also noted that plaintiff has poor concentration and

frequently misses appointments. (R. 221-222). Finally, on January 22, 2004, Dr. Rogers completed a

form indicating that if plaintiff’s alcohol abuse stopped she would still be paranoid, delusional, have

tangential thoughts and blunt affect and would not be able to sustain employment. (R. 206). 

C. Administrative Hearing Testimony

On February 3, 2004, plaintiff and a Vocational Expert (‘VE”) testified before ALJ William Reddy

regarding her disability. (R. 37-52). At the beginning of the hearing, it was established that plaintiff had

two prior applications, one in 1994 and a second in August of 2000, which was denied March 30, 2001,

both of which were unable to be reopened. (R. 40). She explained that she currently lives alone but there

was a possibility that someone might move in with her. (R. 43-44). 

Plaintiff testified that she began attending COMHAR in August and goes three days a week. She

explained that she was originally supposed to go every day, but “hardly even went twice a week.” (R. 44-

45). According to plaintiff, the medications prescribed would help with manic symptoms and depression.

(R. 455). The hours to go to COMHAR are from 9:00 to 3:00. When asked if she is still using alcohol,

plaintiff testified that she does not want to go back to that. However, she admitted that she had last had

beer that Thursday. (R. 46). In response to her attorney’s question as to whether plaintiff still hears voices

when taking her medication, plaintiff testified that she had moved in April and really had not steadily been

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 8 of 19
9

taking medication, but then stated that the voices are lower. (R. 46-47). Upon questioning by the ALJ,

plaintiff testified that she did not take her medication the way she was supposed to but she was going to

now. (R. 47). In order to get to COMHAR, plaintiff takes a bus and walks a few blocks. (R. 48). 

As to her prior work history, plaintiff testified that she worked for a printing place at a law firm

doing letterheads for about three months in 1989. She was unable to remember what type of work she did

for MPK Trust in 1990 and 1991. (R. 48-49). Plaintiff testified that the last time she took medication was

a daytime pill yesterday, but she did not take medication last night. She explained that after drinking she

is supposed to wait one week before taking medication. (R. 49). When asked about side effects from her

medications, she testified that there was not anything bad. She explained that if she takes them steadily

for a couple of weeks they “kick in”, which is what she plans to do. (R. 49-50).

When asked if she has problems with concentration or focusing, plaintiff testified that she has not

done anything to make her focus, but she does not think so. She then stated that she sometimes has trouble

getting things done. She does not clean her house for a month, but then gets around to doing it. (R. 50).

Plaintiff does not watch television and the only book she reads is a book about recovery called As Bill

Sees It. (R. 50). She testified that she attends AA meetings and sometimes she will hear somebody

screaming outside. She explained that going to COMHAR is like going to AA meetings because people

talk about problems and say the serenity prayer, but they do not “get into the book”. On days that she does

not go to COMHAR she stays at home, sleeps a lot and barricades herself. She prepares frozen meals for

herself, does food shopping, but not every week, and pays her bills with money orders that she buys

wherever they are the cheapest. She had last seen her AA sponsor last Wednesday and was thinking of

getting another one. (R. 52-53). 

Upon questioning by her attorney, plaintiff testified that she moved into her own house in 2003

right around the time she applied for benefits. Prior to that she lived with her mom for about six years and

nine months. (R. 53). Plaintiff has one daughter who is in her last year of high school. Since January or

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 9 of 19
1

 The Commissioner has promulgated a five-step sequential analysis, which is used to evaluate claims of

disability, as follows: (1) whether the claimant is engaged in substantial gainful employment; (2) whether the

claimant suffers from a “severe” impairments; (3) whether the impairment meets or equals the severity of a listed

impairment; (4) whether the claimant can return to his past relevant work; and (5) whether the claimant has the

residual functional capacity to engage in other work in the national economy. 20 C.F.R. § 404.920(b)-(g) (2003).

10

February her mother has had custody of her daughter and her daughter stayed with her mother when she

moved out. (R. 53-54). Prior to that plaintiff did not want her daughter to go to school because she

thought the voices she heard were her daughter screaming. (R. 54). Plaintiff also had another daughter

whom she put up for adoption, but she called plaintiff on the phone in 2000 or 2001. (R. 54). Plaintiff’s

sister, Patricia, came to the hearing with her and helps her when she has to get to an appointment, as well

as financially. (R. 56). 

Following the conclusion of plaintiff’s testimony, the ALJ questioned vocational expert Gary

Young, regarding plaintiff’s ability to perform substantial gainful activity. (R. 57). First, the VE testified

that a limitation for a hypothetical individual to just simple routine tasks would not have any kind of an

effect on the unskilled occupational base. (R. 57). Finally, the VE testified that someone with the

limitations assessed by Dr. Rogers on the assessment form dated January 20, 2004, (poor or none in all

areas ofmaking occupational adjustments and performance adjustments, fairforremembering and carrying

out simple job instructions and poor or none for demonstrating reliability) would not be able to obtain or

retain employment. (R. 58). 

III. THE ALJ’S DECISION

On March 26, 2004, the ALJ issued a decision finding plaintiff not disabled for purposes of

benefits. (R. 19-27). Under step one of the sequential analysis, the ALJ determined that plaintiff had not

engaged in substantial gainful activity since her alleged onset date. (R. 20). Pursuant to step two, he

deemedplaintiff’s bipolardisorder and alcohol abuse disorder as “severe” impairments within themeaning

of the Social Security Act,1 but found that her alleged physical impairments, including neck pain, were not

severe. (R. 21). Considering the third step, the ALJ remarked that her impairments failed to meet or equal

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 10 of 19
11

the criteria of either Listing 12.04 (Affective Disorders) or Listing 12.09 (Substance Addiction Disorders).

(R. 21-23). Turning to an assessment of plaintiff’s residual functional capacity, the ALJ found that

plaintiff retained the residual functional capacity to perform the exertional demands of all levels of work,

and that when compliant with medication and not abusing alcohol, she can perform simple routine tasks.

(R. 25). At step four of the analysis, the ALJ noted that plaintiff had no past relevant work within the

regulatory definition. (R. 25). Using section 204.00 of the Medical Vocational Guidelines, as a

framework, and relying upon the VE’s testimony that a limitation to simple routine work would not

significantly reduce the unskilled occupational base at any exertional level, the ALJ deemed plaintiff not

disabled. (R. 26).

IV. STANDARD OF REVIEW

On judicial review of a final decision from the Commissioner of Social Security, a court must

determine whether the Commissioner’s ruling is supported by substantial evidence. 42 U.S.C. § 405(g);

Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied, 507 U.S. 924, 113 S. Ct. 1294

(1993);Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.), reh’g denied (3d Cir. Sept. 9, 1988). "Substantial

evidence" does not mean "a mere scintilla," but rather indicates such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.

Ct. 1420, 1427 (1971). Although a reviewing court has a duty to review the evidence in its totality,

Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Daring v. Heckler, 727 F.2d 64,

70 (3d Cir. 1984)), the court is “bound by the ALJ’s findings of fact if they are supported by substantial

evidence in the record.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999).

V. DISCUSSION

Whether the ALJ Failed to Afford Appropriate Weight to the Reports of Plaintiff’s Treating

Psychiatrist

Under applicable regulations and controlling case law, “opinions of a claimant’s treating physician

are entitled to substantial and at times even controlling weight.” Fargnoli v. Massanari, 247 F.3d at 43

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 11 of 19
12

(citing 20 C.F.R. § 404.1527(d)(2)). Such deference is accorded to treating physicians, especially "when

their opinions reflect expert judgment based on a continuing observation of the patient's condition over

a prolonged period of time." Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987) (quoting Podedworny

v. Harris, 745 F.2d 210, 217 (3d Cir. 1984)); 20 C.F.R. § 404.1527(d). Moreover, where the treating

physician is a specialist his opinion is entitled to even greater deference. See Mason v. Shalala, 994 F.2d

1058, 1067 (3d Cir. 1993); 20 C.F.R. § 404.1527(d)(5). A treating source’s opinion on the issue of the

nature and severity of a claimant’s impairment will be given controlling weight if the opinion is

“well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d).

An ALJ may reject a treating physician's opinion outright only on the basis of contradictory

medical evidence, but may afford a treating physician's opinion more or less weight depending upon the

extent to which supporting explanations are provided. Plummer v. Apfel, 186 F.3d at 429. In choosing

to reject the treating physician's assessment, an ALJ may not make "speculative inferences from medical

reports" and may not reject a treating physician's opinion due to his or her own credibility judgments,

speculation or lay opinion. Morales v. Apfel, 225 F.3d 310, 317-318 (3d Cir. 2000) (quoting Plummer,

186 F.3d at 429). Where an ALJ elects to disregard a treating physician’s opinion, he must explicate on

the record his reasons for doing so. Brewster v. Heckler, 786 F.2d 581, 584 (3d Cir. 1986). It cannot be

“for no reason or for the wrong reason.” Morales, 225 F.3d at 317 (quotations omitted).

In this case, plaintiff contends that the ALJ failed to afford appropriate weight to the reports of

plaintiff’s attending psychiatrist, Dr. Rogers, which if credited would result in a finding of disability. The

ALJ’s decision makes it clear that he specifically considered Dr. Rogers’ treatment notes and recognized

Dr. Rogers as a treating source, but gave little weight to his assessment. ALJ Reddy rejected Dr. Rogers’

assessment, finding that absent her alcohol abuse and when compliant with medication plaintiff is capable

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 12 of 19
13

of performing simple routine work at any exertional level.

The Social Security Act provides that “an individual shall not be considered disabled...if

alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the

determination that the individual is disabled.” 42 U.S.C. § 1382c(a)(3)(J). 20 C.F.R. § 404.1535 (b)(1)

of the Social Security Regulations states that: “[T]he key factor we will examine in determining whether

drug addiction or alcoholism is a contributing factor material to the determination of disability is whether

we would still find you disabled if you stopped using drugs or alcohol.” The regulation mandates that the

Commissioner consider whether absent drug or alcohol use the plaintiff would still be disabled. 

The ALJ acknowledged that Dr. Rogers when assessing plaintiff’s RFC, concluded that plaintiff

had poor or no ability in almost every area considered and opined that even if the affects of her alcoholism

were not considered she would be disabled. However, the ALJ specifically stated that he gave little weight

to Dr. Rogers’ findings because “although Dr. Rogers excluded the effects of the claimant’s alcohol abuse

in her assessment, Dr. Rogers did not consider the effects of medication noncompliance which is a very

significant part of this case.” (R. 22).

Pursuant to 20 C.F.R. 416.930(a) "In order to get benefits, you must follow treatment prescribed

by your physician if this treatment can restore your ability to work...” The regulation further provides that

“If you do not follow the prescribed treatment without a good reason, we will not find you disabled...”

20 C.F.R. 416.930(b). Courts have examined four factors in considering whether a failure to comply with

treatment will preclude disability benefits: (1) the treatment at issue must be expected to restore plaintiff’s

ability to work, (2) the treatment must be prescribed by a physician, (3) the claimant must have refused

the treatment, and (4) the refusal must be without a justifiable excuse. Sharp v. Bowev, 705 F. Supp. 1111,

1123 (W.D. Pa. 1989) (citing Tester v. Heckler, 775 F.2d 1104, 1107 (10th Cir. 1985); Jones v. Heckler,

702 F.2d 950, 953 (11th Cir. 1983); Cassiday v. Schweiker, 663 F.2d 745, 749 (7th Cir. 1981)). 

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 13 of 19
14

The ALJ considered the issue of plaintiff’s alcohol abuse in combination with her failure to comply

with treatment when assessing plaintiff’s RFC. He concluded that when compliant with medication and

not abusing alcohol plaintiff was able to perform simple routine tasks and no further limitations were

supported by the record. However, there are no medical reports which truly speak to these issues. Rather,

the ALJ improperly drew his own inferences from the record as to what effect plaintiff’s sobriety and

medication compliance would have and rejected Dr. Rogers’ conclusions. 

Although he gave little weight to Dr. Rogers’ assessment, ALJ Reddy indicated that he gave “great

weight” to the assessment of the state agency consultant, “as he provided specific reasons for his opinions

showing support in the record.” (R. 22). However, as plaintiff notes, the non-examining state agency

opinion predated Dr. Rogers’ assessment and the record review was done prior to plaintiff’s counsel

supplementing the record. State agency physician, Dr. Fink, obviously could not have considered

plaintiff’s hospitalization at Temple University Hospital Behavioral Health Services Crisis Response

Center from August 12 to August 15, 2003, which lead to her referral to COMHAR. At that time,

plaintiff’s GAF score was assessed as 30 and she reported that she was depressed and could not stay in

her house because they keep people locked in the basement next door. (R. 235, 223-264). Plaintiff

reported that she would kill her neighbor if her daughter was not in the army and the examiner noted that

plaintiff obviously posed a threat to her neighbor. (R. 230). The state agency consultant did not have the

opportunity to review records of this hospitalization, any of Dr. Rogers’ records, Dr. Rogers’ assessment,

or plaintiff’s treatment notes from COMHAR, making his opinion very incomplete. 

In rejecting Dr. Rogers’ RFC assessment, ALJ Reddy also relied upon the improvement in

plaintiff’s GAF scores when she was discharged after several of her hospitalizations. The ALJ noted that

plaintiff has been hospitalized many times with a dual diagnosis of depression and alcohol abuse and that

at the time of all of her admissions she had been abusing alcohol and was non-compliant with taking her

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 14 of 19
2A GAF score in the range of 31-40 indicates “some impairment in reality testing or communication (e.g.

speech is at times illogical, obscure or irrelevant) OR major impairment in several areas such as work, school, family

relations, judgment, thinking or mood; “ a GAF score in the range of 41-50 indicates “serious symptoms (e.g.

suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational,

or school functioning (e.g., no friends, unable to keep a job); a GAF score in the range of 51-60 indicates “moderate

symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) OR some difficulty in social,

occupational or school functioning (e.g. occasional truancy or theft within the household) but generally functioning

pretty well, has some meaningful interpersonal relationships.” Diagnostic and Statistical Manual of Mental

Disorders (DSM- IV) 32, 34 (4th Ed. 2000). 

15

psychotropic medications. (R. 21). He recognized that at the time of plaintiff’s admissions, when plaintiff

is abusing alcohol and failing to take medication, her GAF scores are “very low”. He noted however that

at the time of discharge, after abstaining from alcohol and taking her prescribed medications, plaintiff’s

GAF scores are much improved, indicating that they were “almost consistently assessed at 55-60". (R.

21). The record indicates that in reality plaintiff’s GAF scores upon discharge ranged from 40 to 60,

but as the ALJ indicated, her scores showed dramatic improvement during her multiple hospitalizations.

For example, although plaintiff was admitted to Friend’s Hospital on December 1, 2000 with a GAF score

of 30, at discharge on December 5, 2000, her GAF was 50 (R. 271-272). On July 2, 2001, plaintiff was

admitted to Friends with a GAF of 15 and on July 10, 2001 was discharged with a GAF score of 55. (R.

269-270). Similarly, on November 22, 2001 her GAF was assessed at 15, but was 55 at the time of

discharge on November 27, 2001. (R. 267-268). On April 14, 2002, she was admitted to Friends with a

score of 30 and was discharged on April 19, 2002 with a score of 40. (R. 265-266). Finally, plaintiff was

admitted to Temple on April 26, 2003 with a GAF score of 30 and was discharged on her alleged onset

date, May 1, 2003, with a score of 60. (R. 158). 

However, while it is true that plaintiff’s condition, according to her assessed scores, drastically

improved while hospitalized, as plaintiff argues, even the improved GAF scores are not indicative of

improvement to the level found by the ALJ and are not sufficient to support the ALJ’s inferences2

. As

noted by the ALJ and by Dr. Rogers’, plaintiff has not taken her medications regularly enough to know

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 15 of 19
16

whether they help. (R. 21, 212). While she testified that “presumably” they help with her manic

symptoms and depression and they take a couple weeks to kick in, there are no medical reports or opinions

in the record to indicate that if she was compliant they would restore her ability to work, as required for

a denial of benefits on this basis. The record does not contain any opinions as to plaintiff’s RFC if she

took her medication as prescribed and no support for the ALJ’s finding that her only limitation would be

to simple routine tasks. While the ALJ recognized that plaintiff had “very low” GAF scores, he also failed

to discuss the fact that plaintiff has had made suicide attempts in the past, that her symptoms included

isolating, withdrawing from family and friends and that during treatment from May of 2000 to May of

2002, her GAF score was consistently assessed as 40 or one occasion 42, with repeated notations that she

had made no progress. (R. 388, 378, 379, 410, 381-384). 

The ALJ rejected Dr. Rogers’ findings, indicating that “the extreme assessment of the claimant’s

current treating psychiatrist is based on a period of treatment when the claimant was not compliant with

her psychotropic medications”. (R. 24). The ALJ noted that although Dr. Rogers opined that plaintiff

would still be disabled even if she was not using drugs and alcohol, Dr. Rogers never treated plaintiff

during a period of consistent sobriety, and all of plaintiff’s psychiatric hospitalizations have been related

to alcohol abuse. (R. 22). The ALJ does not however reference any records which indicate that plaintiff

was sober or that if she complied with treatment she would only be limited to simple work. A review of

plaintiff’s medical record, even prior to her alleged onset date, seems to indicate that plaintiff has never

truly been compliant with treatment or stopped abusing alcohol. There are therefore no records to support

the ALJ’s findings regarding her ability to function absent alcohol abuse and with medication compliance.

 As noted by the ALJ, the record as a whole, including Dr. Rogers’ treatment notes repeatedly

documents plaintiff’s failure to take prescribed medication. The ALJ specifically referenced Dr. Rogers’

notes indicating that in September 2003, plaintiff reported that she did not take her medication on a regular

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 16 of 19
17

basis and in December 2003, she stated she had not taken any medication since October. (R. 22). 

Furthermore, plaintiff failed to attend therapy as prescribed by her treating doctors. In September 2002,

she reported that she wanted a new therapist because her old one had arranged for her to attend Northeast

and she did not want to sit around 8 hours a day listening to people whine. She reported that after going

a few times she was discharged from the program for non-compliance. (R. 133). Even after beginning to

see Dr. Rogers’, the record demonstrates that plaintiff’s non-compliance continued. She began seeing Dr.

Rogers on September 5, 2003 and notes from each of plaintiff’s three other visits with Dr. Rogers

reference her failure to comply with treatment. At plaintiff’s second visit, on September 26, 2003, she

admitted that she had not taken medication for a couple of weeks and still had not filled her prescription.

(R. 211). On December 12, 2003, Dr. Rogers’ notes reflect that plaintiff had not been coming to the

program, that she admitted that she had not taken her medication regularly enough to know if they help

and plaintiff planned to take her treatment more seriously. (R. 212). Finally, at her last visit with Dr.

Rogers on January 20, 2004, although plaintiff admitted that when she does not take the medication, she

gets depressed and drinks, the record reflects that she was not attending the program regularly and had

been warned that she would be transferred out of the program. (R. 213). 

According to plaintiff’s own testimony, as of the time of the hearing she was still not complying

with treatment or taking her medications as prescribed. Plaintiff testified that although she was originally

supposed to go to COMHAR every day, she “hardly even went twice a week.” (R. 44-45). Although

plaintiff testified at the hearing that she intended to take her medication in the future, she admitted that she

was still not currently taking her medication the way she was supposed to. (R. 46-47). Furthermore,

plaintiff does not even argue that she has a reasonable explanation for her failure to comply. Pursuant to

Social Security Ruling 82-59, in cases where the ALJ has determined that an individual's impairments

preclude her from engaging in substantial gainful activity, i.e., an individual who would otherwise be

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 17 of 19
18

found to be disabled under the Act, the hearing examiner is obligated to provide the claimant "an

opportunity to fully express the specific reason(s) for not following the prescribed treatment." SSR 82-59;

See also Lozada v. Barnhart, 331 F. Supp.2d 325, 339 (E.D. Pa. 2004). Pursuant to the regulations, there

are certain acceptable reasons for failure to follow prescribed treatment. 20 C.F.R. 416.930(c). However,

here, plaintiff’s only explanation has been her statements that attending therapy “can be so monotonous”

and that her medication caused weight gain. (R. 45). 

The ALJ’s finding of non-compliance is undeniably supported by the record and the ALJ clearly

had no basis pursuant to 20 C.F.R. § 416.930(c) to find plaintiff’s reasons for her noncompliance to be

acceptable. However, while, we agree with the ALJ that the record is riddled with references to plaintiff’s

failure to comply with treatment and her continued abuse of alcohol, without further support from the

record we cannot find the ALJ’s conclusion regarding disability to be supported by substantial evidence.

There are no medical reports which indicate that plaintiff’s compliance would restore her ability to work

as inferred by the ALJ. The record does not include medical evidence to support the ALJ’s findings as

to plaintiff’s RFC. We therefore agree that the ALJ should have sought an opinion from a medical expert

or at least should have recontacted Dr. Rogers. The ALJ noted that Dr. Rogers failed to even comment

on plaintiff’s noncompliance, which the ALJ found to be a significant part of this case, but rather than

seeking an opinion on the issue from Dr. Rogers or supplementing the record with expert testimony, ALJ

Reddy simply rejected her conclusions in favor of his own inferences. 

Given her continued abuse of alcohol without any attempt at rehabilitation and her repeated

noncompliance with prescribed treatment, including both therapy and medication, we do not find this

plaintiff to be at all sympathetic. We acknowledge that the ALJ is not bound to accept Dr. Rogers’

conclusions regarding the ultimate issue of disability and do not find the record adequate to support a

reversal. However, we have no choice but to recommend remand to allow the ALJ to fully develop the

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 18 of 19
19

record and to properly consider medical opinions regarding the effect of plaintiff’s drug or alcohol abuse

pursuant to 20 C.F.R. § 404.1535 (b)(1) and then if she would still be disabled absent her alcohol abuse

to consider pursuant to 20 C.F.R. 416.930(a) whether compliance with medication would enable plaintiff

to engage in gainful employment . Given these two issues to be examined, and in order to prevent another

situation where an opinion is based upon an incomplete record, we agree with plaintiff that it may be

advisable to have a medical expert present at the hearing. 

Therefore, I make the following:

RECOMMENDATION

AND NOW, this day of July, 2005, IT IS RESPECTFULLY RECOMMENDED that

Defendant’s Motion for Summary Judgment be DENIED, that Plaintiff’s Motion for Summary Judgment

be GRANTED, and that the case be REMANDED to the Commissioner of the Social Security

Administration, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings consistent with

this Report and Recommendation.

BY THE COURT:

 

 CHARLES B. SMITH

UNITED STATES MAGISTRATE JUDGE

Case 2:05-cv-00352-TON Document 9 Filed 07/27/05 Page 19 of 19