1

 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ALBERT GRAY, JR., : CIVIL ACTION

Plaintiff :

:

VS. :

:

JO ANNE B. BARNHART, :

Commissioner of Social Security, :

Defendant : NO. 04-4078

 REPORT AND RECOMMENDATION

LINDA K. CARACAPPA

UNITED STATES MAGISTRATE JUDGE

Plaintiff, Albert Gray, Jr., brought this action under 42

U.S.C. § 405(g), seeking judicial review of the final decision of

the Commissioner of Social Security (Commissioner) denying

plaintiff's claim for disability insurance benefits (DIB) under

Title II of the Social Security Act (Act). The parties have filed

cross-motions for summary judgment. For the reasons which follow,

it is recommended that plaintiff’s motion for summary judgment be

granted and the motion of the Commissioner be denied. 

 BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is a forty-seven (47) year-old male born on December

23, 1957 (Tr. 33). He has a high school education, attended two

years of college, and received a “certificate of completion” to be

a chemical technician (Tr. 35). His past relevant work experience

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1Plaintiff had previously applied for DIB and was awarded

benefits in 1985. He continued to receive such benefits until

November 1995 when they were ceased because he returned to work

performing substantial gainful activity (Tr. 130).

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included jobs as a meter reader, security guard, fast food

cook/cashier, mail handler, and dishwasher (Tr. 188, 260-61).

Disability is alleged as of November 3, 1998 due to bipolar

disorder, schizophrenia, and right hip pain (Tr. 187).

Plaintiff’s DIB application, filed on March 2, 19991, was

denied initially and upon reconsideration (Tr. 143-146, 150-152).

He then requested a hearing before an administrative law judge

(ALJ). A hearing was commenced on June 7, 2000, at which,

plaintiff, represented by counsel, testified along with a

vocational expert (VE) and a medical expert (ME) (Tr. 30-71). At

the end of this hearing, the ALJ ordered that plaintiff be given a

consultative mental examination (Tr. 70). 

In a decision rendered August 16, 2000, the ALJ determined

that plaintiff has “severe” impairments, but retains the residual

functional capacity to do his past work as a dishwasher. Thus, he

was determined to be not entitled to benefits (Tr. 130-136).

Plaintiff filed a request for review with the Appeals Council who

remanded the matter back on August 9, 2002 to the ALJ on the basis

that the ALJ had never sent a copy of the consultative examination

report to plaintiff’s attorney for comments as he was required to

do (Tr. 180-181). 

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Plaintiff’s attorney then sent a letter to the ALJ on January

17, 2003 and reported that plaintiff had been discharged from a

psychiatric program in January and had been working at a local

hospital. The letter also indicated that plaintiff wanted to

change his appeal to a closed period of disability (Tr. 549).

A supplemental hearing was held on January 24, 2003, at which,

plaintiff again testified along with a VE and an ME (Tr. 72-122).

In a decision dated April 9, 2003, the ALJ found that plaintiff had

a “combination of mental impairments (polysubstance abuse disorder

with substance-induced mood disorder, and/or bipolar disorder)

considered severe,” but did not meet or equal a listed impairment.

The ALJ further determined that plaintiff retains the residual

functional capacity to perform simple, routine instructions within

a low stress environment and this did not preclude his past work as

a dishwasher (Tr. 15-24). 

The ALJ's findings became the final decision of the

Commissioner when the Appeals Council denied plaintiff's request

for review on July 7, 2004 (Tr. 4-6). Presently, plaintiff has

appealed that decision to this court.

 JUDICIAL REVIEW

The role of this court, on judicial review, is to determine

whether the Commissioner's decision is supported by substantial

evidence. 42 U.S.C. § 405(g); Pierce v. Underwood, 587 U.S. 552

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(1988). "Substantial evidence” is not "a large or significant

amount of evidence but rather such relevant evidence as a

reasonable mind might accept to support a conclusion.” Id. at 664-

65. “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). 

 To establish a disability under the Social Security Act, a

claimant must demonstrate that there is some "medically

determinable basis for an impairment that prevents him from

engaging in any 'substantial gainful activity' for a statutory

twelve-month period." Stunkard v. Secretary of Health and Human

Services, 841 F.2d 57 (3d Cir. 1988), quoting Kangas v. Bowen, 823

F.2d 775, 777 (3d Cir. 1987); 42 U.S.C. § 423(d)(1) (1982). A

claimant can establish such a disability in either of two (2) ways:

(1) by producing medical evidence that one is disabled per se as a

result of meeting or equaling certain listed impairments set forth

in 20 C.F.R. Regulations No. 4, Subpart P, Appendix 1 (1987); see

Heckler v. Campbell, 461 U.S. 458 (1987); Stunkard v. Secretary of

Health and Human Services, 841 F.2d at 59; Kangas v. Bowen, 823

F.2d at 777; or (2) by demonstrating an impairment of such severity

as to be unable to engage in "any kind of substantial gainful work

which exists in the national economy." Heckler v. Campbell, 461

U.S. at 461; 42 U.S.C. § 423(d)(2)(A).

 This method of proving disability requires that the claimant

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first show that he/she is unable to return to his/her former work

due to a physical or mental impairment. Once a claimant has

demonstrated that he/she is unable to perform his/her former work,

the burden shifts to the Commissioner to prove that there is some

other kind of substantial gainful employment he/she is able to

perform, taking into consideration the claimant's physical ability,

age, education and work experience. See Kangas v. Bowen, supra;

Rossi v Califano, 602 F.2d 55, 57 (3d Cir. 1979); 42 U.S.C. §

423(d)(2)(A).

This case was decided under the medical-vocational regulations

which require a five-step sequential evaluation of disability

claims. See generally, Heckler v. Campbell, supra; Santise v.

Schweiker, 676 F.2d 925 (3d Cir. 1982). The sequential evaluation

considers in turn current work activity, the severity of

impairments, the ability to perform past work and vocational

factors. 20 C.F.R. §§ 404.1520 and 416.920.

In this case, the Commissioner reached the fourth step of the

evaluation and determined that plaintiff was capable of performing

his past work as a dishwasher. 

 MEDICAL HISTORY

The relevant evidence in this case consists of medical reports

and testimony which are summarized as follows:

Plaintiff was given a psychiatric evaluation on May 12, 1999

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2A Global Assessment of Functioning is the scale of

psychological, social, and occupational functioning on a

hypothetical continuum of mental health, illness. A score of 70

is characteristic of only some mild symptoms or difficulty in

social, occupational, or school functioning but is generally

functioning pretty well. Diagnostic and Statistical Manual

(Fourth Edition), American Psychiatric Association at 32.

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by Dr. Alan Cooperstein at the request of the Pennsylvania Bureau

of Disability Determination. Dr. Cooperstein noted that plaintiff

had a history of drug dependence involving cocaine and alcohol. He

reported that plaintiff was co-operative, pleasant, and restless.

His speech was goal-oriented, and mood normal with some slight

depression. His affect was full and appropriate with no evidence

of thought disorder, and no evidence of delusions. Dr. Cooperstein

diagnosed plaintiff with schizophrenia, paranoid type, and alcohol

and cocaine abuse. He also gave him a GAF of 48-502 “placing him

at the highest level of the serious range of symptoms involving

serious impairment in social occupational or school functioning”

(Tr. 295-297).

Plaintiff was given a psychological disability evaluation on

November 15, 1999 by Robert Dimtommaso, Ph.D. Dr. Dimtommaso noted

that plaintiff was dependent on his mother for finances and

decisions. Plaintiff’s mood was depressed and emotional expression

was appropriate to thought content and situation. “There is

evidence of auditory hallucinations but no illusions,

depersonalization or derealization.” His stream of thought was

within normal limits, but he does have some delusional thinking.

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3The ALJ stated at the conclusion of the hearing that he was

sending plaintiff for a consultative psychiatric examination (Tr.

70).

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Dr. Dimtommaso’s diagnosis was psychotic disorder and he opined

that plaintiff’s prognosis was guarded. He added that “this is an

individual who is likely to have psychiatric problems during the

course of his lifetime.” Regarding activities of daily living, Dr.

Dimtommaso indicated that plaintiff does not clean and his mother

takes him shopping. He uses public transportation and depends on

his mother for maintaining the residence. As to social

functioning, plaintiff apparently gets along with others. He is

able to “understand, retain and follow directions but depending on

his mental state may have difficulty performing activities,

attending to task and sustaining a routine. He seems able to make

decisions and in his current state may have difficulty performing

consistently. Regarding adaption to stressful circumstances, Dr.

Dimtommaso wrote that plaintiff does not handle stress well and

stress may affect his ability to react to deadlines or schedules.

He added that “in the face of conflict, he may become aggressive

and stress may affect his ability to make decisions, maintain

regular attendance” (Tr. 302-308).

Plaintiff was given a psychological evaluation by Dr. Joseph

Slap on July 5, 2000 at the request of the ALJ at the June 7, 2000

administrative hearing (Tr. 70).3 Dr. Slap noted that plaintiff

had several psychiatric hospitalizations and has attended a

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Veteran’s Administration Clinic as an outpatient for many years.

He sees a psychiatrist once a month for psychotropic medication,

and continues to hear voices. Plaintiff’s affect “appeared to be

of good quality and appropriate to the thought content.” Dr. Slap

gave his diagnosis as paranoid schizophrenia which will continue in

the immediate future. He opined that plaintiff “could not hold on

to a job for very long. . . . because of his impaired memory and

impaired concentration and particularly because of his paranoia, as

evidenced by his ideas of reference, I do not feel that he could

remain in any work place for any significant amount of time” (Tr.

456-462).

Dr. Slap also filled out a mental assessment form. He opined

that plaintiff has no ability to relate to co-workers, deal with

the public, interact with supervisors, deal with work stresses,

maintain attention/concentration, behave in an emotionally stable

manner, relate predictably in social situations, demonstrate

reliability, and understand, remember, and carry out even simple

job instructions. He further found him to have “fair” ability to

follow work rules, use judgment, and function independently (Tr.

463-464).

The record also contains several updates from the Philadelphia

Veterans Affairs Medical Center, Addiction Recovery Unit (VAMC).

On July 17, 2000, Dr. Wayne Barber indicated that plaintiff

suffered with bipolar disorder with cocaine dependence, and gave

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him a GAF of 50 (Tr. 516). He repeated this diagnosis on March 6,

2001. On August 6, 2001, Dr. Barber reported that plaintiff was

fully oriented without evidence of cognitive inefficiency. His

speech was logical, coherent, relevant and goal directed without

hint of abnormal ideation. “Insight and judgment are acceptable”

(Tr. 468). Dr. Barber reiterated this assessment in several

updates in 2001 and 2002 (Tr. 473-477).

On December 5, 2002, a note from the VAMC indicated that

plaintiff had been working two jobs, daytime at Crozier Hospital

and evening at Walmart. However, he got into some confrontation

with a security guard and lost the hospital job. A mental status

examination on this date stated that plaintiff mood was of mild

tension and “ready irritability.” His affect was “level and well

modulated with normal range of appropriate display.” In addition,

plaintiff indicated that he was not hearing voices (Tr. 465). 

A medical expert (ME), Dr. Richard Saul, testified at the June

7, 2000 administrative hearing. After reviewing the medical

evidence and listening to the hearing testimony, he opined that

plaintiff’s diagnoses were schizoaffective disorder with bipolar

features and substance addiction disorder. He found, however, that

these conditions did not meet a listed impairment. Dr. Saul

further opined that plaintiff was “moderately” impaired in his

activities of daily living, and his ability to maintain social

functioning. His ability to maintain concentration, persistence,

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or pace would “often” be affected, and he would have “repeated”

episodes of deterioration or decompensation in work-like settings

(Tr. 53-59).

A vocational expert (VE) also testified at this hearing. The

ALJ asked the VE to consider an individual with plaintiff’s

vocational profile who has no exertional limitations and the

limitations he testified to at the hearing. The VE responded that

this individual could perform his past work as a dishwasher. In

response to plaintiff’s counsel’s hypothetical that plaintiff was

unable to complete a day’s work, the VE opined that plaintiff could

perform no work (Tr. 59-61). 

 Plaintiff testified at the January 24, 2003 hearing that he

lived at his mother’s home, was able to take public transportation,

but did not have a driver’s licence because of unpaid tickets. He

indicated that had worked at Crozier Hospital, but had an incident

with security and had to leave the job. He applied for

reinstatement, but had not heard anything as of the date of the

hearing. Before February 2001, he had been unemployed for several

years due to problems with concentration, auditory hallucinations,

and depression. He had been clean of alcohol and drugs for 2-3

years, but had a relapse when he lost the Crozier job. He still

hears voices even when taking his medication. He does not like to

go out in public, and was ambiguous about losing some jobs whether

he had been fired or quit because of not being able to control his

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temper (Tr. 75-92).

A medical expert (ME), Dr. Richard Cohen, testified at this

hearing and opined that plaintiff’s principal diagnosis was

substance abuse with alcohol and marijuana dependency. He further

opined that plaintiff had a substance induced mood disorder, and

that drugs caused his mood swings and mimic bipolar disorder. He

added that plaintiff did not meet a listed impairment even if his

bipolar disorder was considered independent of drug use and found

him to only have mild impairment in activities of daily living,

social impairment, and concentration. Dr. Cohen also testified

that plaintiff is able to work with his hallucinations (Tr. 108-

111). 

 

 DISCUSSION

The Commissioner's findings must be affirmed if they are

supported by substantial evidence. 42 U.S.C. § 405(g); Richardson

v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971). The

role of this court is to determine whether there is substantial

evidence to support the Commissioner's decision. Williams v.

Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied, 507

U.S. 924, 113 S. Ct. 1294 (1993).

In coming to a decision, it is the ALJ's responsibility to

resolve conflicts in the evidence and to determine credibility and

the relative weights to be given to the evidence. Richardson v.

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Perales, supra. 

In this case, the ALJ found that the medical evidence

establishes that plaintiff has a “combination of mental impairments

(polysubstance abuse disorder with substance-induced mood disorder,

schizoaffective disorder, and/or bipolar disorder) considered

severe.” The ALJ further determined that such impairments do not

meet a listed impairment, and that plaintiff has the residual

functional capacity to perform simple, routine instructions within

a low stress environment which includes his past job as a

dishwasher. He was, thus, found not entitled to benefits during a

closed period of disability from January 2000 to February 2001.

For the reasons which follow, this court finds that the ALJ’s

decision is not supported by substantial evidence and summary

judgment should be granted in favor of the plaintiff.

In his opinion, the ALJ found that the evidence from the VAMC

establishes that the plaintiff is “not more than moderately

symptomatic or moderately function-impaired when not using drugs or

alcohol.” He also accepted the testimony of ME, Dr. Richard Cohen,

as being consistent with plaintiff’s “updated medical documentation

and current hearing testimony” (Tr. 22). As set forth above, Dr.

Cohen testified that plaintiff’s impairments are “polysubstance

abuse with alcohol hallucinosis, and that claimant’s use of alcohol

and marijuana induces a mood disorder and an amotivational

syndrome.” He further testified that independently plaintiff has

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a bipolar disorder, but such imposes only “mild” limitations on

“activities of daily living, social functioning, and concentration,

and no breaks or extended, repeated periods of decompensation” (Tr.

22).

We are of the opinion, however, that the ALJ erred in his

reliance on the testimony of Dr. Cohen that plaintiff’s mental

impairments are drug-related and that an independent bipolar

disorder causes him only “mild” limitations. In addition, we find

that the ALJ erred in giving no weight to the opinion of Dr. Joseph

Slap who performed a mental consultative examination upon his own

request at the conclusion of the June 7, 2000 administrative

hearing. Furthermore, contrary to the ALJ’s determination, we find

that Dr. Slap’s assessment is consistent with the other evidence in

the record, including the evidence from the VAMC, which indicates

that plaintiff suffered with disabling mental impairments

independent of any substance abuse for at least the period of

closed disability at issue. 

In May 1999, plaintiff was evaluated by Dr. Alan Cooperstein

at the request of social security. He diagnosed plaintiff with

schizophrenia, paranoid type and gave him a GAF of 48-50 which he

stated placed “him at the highest level of the serious range of

symptoms involving serious impairment in social occupational or

school functioning” (Tr. 295-297).

In November 1999, Robert Dimtommaso, Ph.D., diagnosed

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plaintiff with psychotic disorder and wrote that “this is an

individual who is likely to have psychiatric problems during the

course of his lifetime.” He further indicated that plaintiff is

able to “understand, retain and follow directions but depending on

his mental state may have difficulty performing activities,

attending to task and sustaining a routine.” He added that

plaintiff does not handle stress well and it may affect his ability

to make decisions and maintain regular attendance (Tr. 302-308). 

Dr. Slap gave plaintiff a psychological evaluation in July

2000. Despite the fact that the ALJ, himself, ordered this

consultative examination, he totally rejected Dr. Slap’s findings

even though they were generally consistent with the assessments of

Drs. Cooperstein and Dimtommaso. Dr. Slap diagnosed plaintiff with

paranoid schizophrenia and opined that he “could not hold onto a

job very long. . . . because of his impaired memory and impaired

concentration and particularly because of his paranoia, as

evidenced by his ideas of reference.” He concluded that “I do not

feel that he could remain in any work place for any significant

amount of time” (Tr. 456-462). 

Dr. Slap further opined in a mental assessment form that

plaintiff has “no” ability to relate to co-workers, deal with the

public, interact with supervisors, deal with work stresses,

maintain attention/concentration, behave in an emotionally stable

manner, relate predictably in social situations, demonstrate

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reliability, and understand, remember, and carry out even simple

job instructions (Tr. 463-464).

Plaintiff was also treated at the VAMC Addiction Recovery Unit

for several years from 2000 through 2003. Contrary to the

assertion of the ALJ, while plaintiff was being treated there for

addiction, there is no indication that during this time, drugs

and/or alcohol abuse caused plaintiff’s mental impairments and that

without substance abuse his mental impairments caused him no more

than moderate limitations. 

Several updates from the VAMC during this period indicated

that plaintiff’s speech was logical, coherent, relevant and goal

directed without hint of abnormal ideation, and his insight and

judgment were acceptable. However, plaintiff was also consistently

diagnosed by Dr. Wayne Barber, his treating psychiatrist, with

bipolar disorder and given GAF scores of 50. In addition, the VAMC

records do not indicate that alcohol and/or substance abuse was

responsible for his mental impairments (Tr. 468, 473-477, 516). 

Moreover, at the close of the January 2003 administrative

hearing, the ALJ stated to plaintiff’s attorney, Alida Shatzer,

Esq., that there was some confusion over a VAMC record that had

suggested that plaintiff had possibly tested positive for cocaine

in July of 2000. The ALJ then requested from Shatzer that this be

clarified and Shatzer responded that he would attempt to do so (Tr.

116, 120-122). 

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Plaintiff asserts in his summary judgment motion that at the

ALJ’s direction, Shatzer contacted the VAMC about this

clarification and received a letter from Dr. Wayne Barber,

plaintiff’s treating psychiatrist and Medical Director of the

Addiction Recovery Unit of the VAMC, addressing such. Shatzer then

faxed this letter to the ALJ on February 10, 2003 and has attached

it to this current motion.

In such letter, Dr. Barber wrote that he assumed psychiatric

care of the plaintiff on February 15, 2001 and had treated him

since that time for a longstanding primary diagnosis of bipolar

disorder and, at no time during his treatment, was he aware that

plaintiff returned to active cocaine use. He added that the notes

from his counselor, Ms. Deborah Wiles, indicate that plaintiff’s

last known use of cocaine was in August 1998. He wrote further

that “[T]here is no question in my mind that this patient’s

diagnosis of Bipolar Disorder exists independent of his history of

drug use and continues to be disabling.” He stated that “[I]n

closing, I have no reason to believe that Mr. Gray has been

involved in problematic substance use during the period I have been

treating him. There is no question in my mind that he is fully

disabled by his primary psychiatric diagnosis of Bipolar Disorder.”

It is apparent from the above that the ALJ received the

clarification that he requested about plaintiff’s substance abuse

from his treating psychiatrist, but decided to simply disregard it.

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420 C.F.R. § 416.927 (d)(2) provides in part that ". . .[I]f

we find that a treating source's opinion on the issue(s) of the

nature and severity of your impairment(s) is well-supported by

medically acceptable clinical and diagnostic techniques and is

not inconsistent with the other substantial evidence in your case

record, we will give it controlling weight. . ." 

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“Treating physicians' reports should be accorded great weight,

especially ‘when their opinions reflect expert judgment based on a

continuing observation of the patient's condition over a prolonged

period of time.’" Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.

1999) (citing Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir.

1987).4

Accordingly, we find that plaintiff is entitled to the closed

period of disability. There is, however, now some dispute whether

plaintiff agreed to have his disability considered a closed one.

He asserts in his motion that the transcript of record shows no

discussion that he agreed to a closed period of disability from

January 2000 to February 2001. He acknowledges that a letter was

sent to the ALJ on January 17, 2003 notifying him that he had

become employed in 2001 and was changing the appeal to a closed

period. He states, however, that no dates were discussed and that

request became null and void when the unfavorable decision was

issued. He now requests that this court consider an ongoing period

of disability from March 2, 1999.

Although the plaintiff is correct that there is no agreement

on the record that he agreed to a closed period of disability, the

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ALJ states in his decision that his attorney stipulated that he

wished to “amend his application to claim only a closed period of

disability from January 2000 to February 2001 (Tr. 18). In

addition, as the Commissioner points out in her summary judgment

motion, “there is nothing in the record to indicate that such a

discussion did not occur off the record at the supplemental

hearing, especially since Mr. Gray did not object on this basis to

the Appeals Council” (See Summary Judgment brief at p. 7).

The Commissioner also points out that plaintiff showed his

intentions to only be considered for a closed period of disability

in his January 17, 2003 letter to the ALJ. In such, plaintiff’s

attorney, Alinda Shatzer, writes that “Mr. Gray was discharged from

his VA psychiatric program in 2001, and he was able to start

working at Springfield Hospital. I am attempting to get

verification of the dates of employment from the hospital. I have

discussed this with the claimant, and we would like to change the

appeal to a closed period of disability” (Tr. 549). 

It is apparent from this letter that plaintiff had sought a

closed period of disability whether he agreed to such on the record

or the specific dates of the closed period. However, we are of the

opinion that this matter should be remanded back to the ALJ to

consider whether plaintiff continued to be disabled after the

closed period ended in February 2001. We base this recommendation

on the same rationale discussed above for recommending the granting

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of disability for the closed period. The evidence indicates that

plaintiff has a continuing mental disability. As noted, Dr. Barber

stated in his February 2003 letter to the ALJ that plaintiff has

bipolar disorder independent of his history of drug use and such

condition “continues to be disabling.” He stated further that

“[T]here is no question in my mind that he is fully disabled by his

primary psychiatric diagnosis of Bipolar Disorder.” 

We are aware that plaintiff attempted to return to work at

Springfield Hospital, Wal-Mart, and Crozier-Chester Hospital during

periods of 2001, 2002, and 2003. He apparently lost all three jobs

and it is very probable that it was due to his mental condition.

However, this is an issue that must be considered by the ALJ upon

remand. Also, on remand, the ALJ should obtain an updated mental

status report from Dr. Barber of the VAMC and/or any other doctor

who is currently treating the plaintiff. Such report should, of

course, address plaintiff’s current drug status and its

relationship to his mental condition. 

Therefore, we make the following:

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 RECOMMENDATION

 AND NOW, this day of , 2005,

IT IS RESPECTFULLY RECOMMENDED that:

 1. the Commissioner's Motion for Summary Judgment be DENIED;

 2. the Plaintiff's Motion for Summary Judgment be GRANTED;

 3. the final decision of the Commissioner denying plaintiff's

claim for disability insurance benefits under Title II of the

Social Security Act be REVERSED; and

4. the matter be REMANDED to the Commissioner for a

calculation of benefits for the closed period of disability from

January 2000 to February 2001; and 

 5. the matter also be REMANDED to the Commissioner to

determine whether the plaintiff remained disabled after the closed

period of disability in accordance with this Report and

Recommendation. 

 ______________________________

 LINDA K. CARACAPPA

 UNITED STATES MAGISTRATE JUDGE

 

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