IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KRISTA L. NOMES, )

)

Plaintiff, )

)

v. ) Civil Action No. 09-112 Erie

)

MICHAEL J. ASTRUE, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

McLAUGHLIN, SEAN J., District Judge. 

Plaintiff Krista L. Nomes (“Nomes”) commenced the instant action pursuant to 42 U.S.C.

§§ 405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of

Social Security (“Commissioner”) denying her applications for disability insurance benefits

(“DIB”) and supplemental security income (“SSI”) benefits under Titles II and XVI of the Social

Security Act (“Act”) [42 U.S.C. §§ 401-433, 1381-1383f]. 

I. PROCEDURAL HISTORY

Nomes protectively applied for DIB and SSI benefits on April 12, 2006, alleging

disability as of November 5, 2005 (AR 45; 51; 180). The applications were administratively

denied on July 19, 2006 (AR 41; 186). Nomes requested an administrative hearing and on

October 24, 2007, a hearing was held in Erie, Pennsylvania, before an Administrative Law Judge

(the “ALJ”) (AR 40; 191). Nomes, who was represented by counsel, appeared and testified at the

hearing, as did an impartial vocational expert (AR 194-226). In a decision dated November 27,

2007, the ALJ determined that Nomes was not “disabled” within the meaning of the Act (AR 10-

20). The Appeals Council denied Nomes’ request for review on March 20, 2009, thereby

rendering the ALJ’s decision the final decision of the Commissioner in this case (AR 4). The

instant action challenges the ALJ’s decision. Presently pending before the Court are crossmotions for summary judgement. For the reasons that follow, the Commissioner’s motion will

be denied and Nomes’ motion will be granted only to the extent she seeks a remand for further

consideration. 

1

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 1 of 18
II. BACKGROUND

Nomes has a history of using drugs such as heroin, crack and cocaine (AR 204). After 1

being imprisoned in January 2006, she was sent to the Deerfield Dual Diagnosis Center for

inpatient rehabilitation (AR 90, 204). Treatment notes dated February 16, 2006 through March

12, 2006 reflect that she reportedly last abused drugs in January 2006 (AR 91). Progress notes

show that she tolerated treatment “well” and by March 3, 2006 her mood was reported as “good”

with no suicidal or homicidal thoughts (AR 88-89). 

Following her release from inpatient rehabilitation, Nomes lived at a halfway house and 

sought mental health treatment at the Stairways Behavioral Health Outpatient Clinic

(“Stairways”) (AR 81-83). On May 9, 2006, Robin Bailey, M.D. performed a psychiatric

examination and evaluation (AR 83-89). Nomes relayed a long history of psychiatric

hospitalizations, the first of which occurred when she was only thirteen years old (AR 84). She

reported “lifetime symptoms” of suicidal thoughts, events and repetitive self-injury dating back

to age fourteen (AR 83). She had also tried to commit suicide by means of a drug overdose at

one point (AR 84). At the time of the evaluation, she stated that her mood was stable and she

was doing “pretty well” with only mild symptoms of suspiciousness (AR 83). She was on

Celexa, Depakote and Risperdal with minimal side effects (AR 84). She denied any recent

suicidal thoughts, but had some self-injurious thoughts in March 2006 (AR 84). She reported

that her symptoms of paranoia were improving, but she still had some auditory hallucinations

which sounded like her own voice (AR 84). Dr. Bailey did not believe these were “true” auditory

hallucinations in the “psychotic sense” (AR 84). 

Dr. Bailey noted that Nomes had experienced mood swings and full-blown manias and

depressions, including during the time she was not taking drugs (AR 83). She further noted that

Nomes had vague paranoia and atypical auditory hallucinations, also while abstinent from drugs

and alcohol (AR 83). On mental status examination, Dr. Bailey observed that Nomes was neatly

groomed, wearing appropriate makeup and fashionable clothing (AR 86). She was cooperative

during the evaluation and maintained good eye contact (AR 86). She exhibited an appropriate

affect, except when she laughed inappropriately while discussing prior physical abuse; her

A treatment note authored by Dr. Bailey on May 9, 2006, states that Nomes began using drugs and alcohol

1

when she was seven or eight years old. (AR 83). The documentary record, however, contains no evidence predating

February 16, 2006 (AR 2; 90-92).

2

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 2 of 18
thought pattern was logical and goal-directed; and her memory was “grossly normal” (AR 86). 

Dr. Bailey found her thought content was remarkable for vague suspiciousness and some atypical

auditory hallucinations described as “her own voice arguing in her head” (AR 86).

Dr. Bailey noted that her primary presenting issue was due to polysubstance dependency,

but that her history was “strongly suggestive of bipolar type I, in addition, due to her history of

marked manic symptoms in the absence of substances” (AR 86). Although Nomes complained

of some vague psychotic symptoms, Dr. Bailey found that these symptoms had largely improved

with her current medication regimen (AR 86). She diagnosed her with polysubstance

dependency, bipolar type I, and “rule out schizoaffective disorder” (AR 86). Dr. Bailey assigned

her a Global Assessment of Functioning (“GAF”) score of 47-50 (AR 87).2

Progress notes from Stairways dated May 23, 2006 indicate that Nomes apparently

secured a night shift job while living at the halfway house (AR 164). On June 13, 2006, she had

moved to the Mercy Center and was reportedly working a second shift factory job (AR 164). On

mental status examination, her mood was reported as euthymic (normal), she was cooperative,

and she denied suffering from any psychosis or suicidal thoughts (AR 164). Dr. Bailey reported

her bipolar disorder as “stable” and continued her medications (AR 164).

Roger Glover, Ph.D., a state agency reviewing psychologist, reviewed the psychiatric

medical evidence of record on July 12, 2006 and concluded that Nomes was only mildly

restricted with respect to her activities of daily living, had moderate difficulties in maintaining

social functioning and in maintaining concentration, persistence or pace, and had no repeated

episodes of decompensation of extended duration (AR 112). Dr. Glover completed a mental

residual functional capacity assessment form and opined that Nomes was not significantly limited

or only moderately limited in all areas of work functioning (AR 115-116). According to Dr.

Glover, Nomes remained capable of understanding and remembering instructions, concentrating,

interacting appropriately with people, adapting to changing activities within the workplace, could

maintain regular attendance and be punctual, and maintain socially appropriate behavior (AR

117). Dr. Glover found she could function in production oriented jobs requiring little

The GAF score considers psychological, social, and occupational functioning on a hypothetical continuum

2

of mental health-illness. It represents “the clinician’s judgment of the individual’s overall level of functioning.” See

Diagnostic and Statistical Manual of Mental Disorders: DSM-IV-TR 32 (4 ed. 2000). Scores between 41 and 50

th

indicate “[s]erious 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).” Id.

3

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 3 of 18
independent decision-making (AR 117). He concluded that Nomes could “meet the basic mental

demands of competitive work on a sustained basis despite the limitations resulting from her

impairment” (AR 117).

On August 25, 2006, Nomes presented to the emergency room at Saint Vincent Health

Center complaining of an increase in her depression, suicidal thoughts and “vague assaultive

ideations” (AR 118). She was evidently thinking about cutting herself at the time of her

admission (AR 118). She stated that her primary stressor was a recent stay at the Mercy Center

as part of her recovery program, and described the environment as extremely “stressful” (AR

118). Nomes reported that she had been sober since January 2006, but still had problems with

anger and poor impulse control (AR 118). She further reported that her depressive symptoms

had decreased during a prior two and one-half year period of sobriety (AR 118). Treatment notes

reflect however, that she reportedly “continued to experience periods lasting for up to one week

during which she had increased psychomotor agitation (bouncing off walls, euphoric affect,

restlessness, and increased energy)” (AR 118). Hema Iyer, M.D., admitted Nomes to the hospital

for inpatient treatment (AR 119). Nomes indicated that her medications (Depakote, Celexa and

Risperdal) were not working, so Dr. Iyer started her on Neurontin, Abilify and Effexor (AR 119). 

By August 28, 2006 Nomes was reportedly “feeling better” and participating in individual and

group therapy (AR 119). On mental status examination at the time of discharge, Dr. Iyer

reported that Nomes had regular speech, a “better” mood and a “near euthymic” affect (AR 120). 

Her thoughts were sequential and goal-directed and she denied suicidal thoughts, hallucinations

and delusions (AR 120). Her psychomotor activity was within normal limits (AR 120). Dr. Iyer

diagnosed Nomes with bipolar affective disorder and polysubstance abuse in early remission (AR

120). She assigned her GAF score of 60 (AR 120). She was discharged from St. Vincent on 3

August 31, 2006, with prescriptions for Neurontin, Abilify and Effexor (AR 120). 

During the fall of 2006, Nomes spent ninety days in prison for violating the terms of her

probation by failing to notify her probation officer that she had changed her living arrangement

(AR 203). Following her release, she returned to Stairways for treatment on December 20, 2006

and stated that she wanted to resume her medications (AR 159). She complained of symptoms of

Scores between 51 and 60 indicate “[m]oderate symptoms (e.g., flat affect and circumstantial speech,

3

occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends,

conflicts with peers or co-workers). Id. 

4

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 4 of 18
depression and impulsiveness, i.e,. shopping and cleaning for extended periods of time (AR 159). 

She further complained of experiencing flashbacks (AR 159). Treatment notes indicate that

Nomes was reportedly quiet and reserved (AR 159). She reported that although her mood was

stable, she was depressed more than usual with no interest in activities (AR 159). She denied

having any suicidal or homicidal thoughts, hallucinations or delusions, and had no feelings of

paranoia or persecution (AR 159). She was restarted on Abilify and Effexor and scheduled to see

Dr. Bailey (AR 159). 

Nomes returned to Stairways on February 27, 2007 for follow up and reported to Dr.

Bailey that “[a] lot [had ] happened” since her last appointment (AR 158). She stated that since

her release from incarceration, her boyfriend had broken her nose and she was staying in a shelter

(AR 158). She relayed a recent Hepatitis C diagnosis (AR 158). Dr. Bailey reported that Nomes

was adequately groomed, talkative and anxious, but denied suffering from suicidal or homicidal

thoughts or symptoms of psychosis (AR 158). It was noted that Nomes wanted to “get [a] job”

(AR 158). She was diagnosed with a mood disorder not otherwise specified and polysubstance

dependency due to a “recent relapse” (AR 158). Dr. Bailey adjusted her medications; the Effexor

dosage was increased, she was restarted on Neurontin, the Abilify was discontinued, and the

Geoden dosage was adjusted (AR 158).

On April 3, 2007, Jill A. Rys, a certified physician’s assistant affiliated with Bayfront

Digestive Disease Associates, noted that Nomes’ medical history was remarkable for bipolar

disorder with drug induced schizophrenia and previous suicide attempts, as well as

hospitalizations for psychiatric illness (AR 140). It was noted that Nomes had been in recovery

from substance abuse for approximately three months (AR 140). Ms. Rys opined that Nomes

was a potential candidate for hepatitis C therapy, but she “preferred” that Nomes be further along

in her drug recovery program prior to proceeding with treatment (AR 140-141; 143). She

recommended laboratory studies and a liver biopsy for staging purposes (AR 140). Nomes

subsequently underwent a liver biopsy on May 7, 2007 (AR 139).4

Stairways treatment notes indicate that Nomes’ Neurontin dosage was increased on April

9, 2007 after she complained that the Geoden was not working (AR 156). On April 26, 2007,

The results of the liver biopsy are not contained in the record. Nomes testified at the hearing that she had

4

never received the results (AR 209-210).

5

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 5 of 18
Nomes complained to Dr. Bailey that she was suffering from nightmares and “paranoia” (AR

154). She was living in transitional housing, and stated she felt fine on some days and on other

days she did not (AR 154). She indicated she was “fighting” depression and had fleeting

thoughts of cutting herself (AR 154). Dr. Bailey noted that Nomes had been engaged in

volunteering activities (AR 154). Dr. Bailey reported that she was talkative and anxious, but she

denied suicidal/homicidal thoughts (AR 154). She diagnosed her with a mood disorder not

otherwise specified, post traumatic stress disorder and substance abuse (AR 154). Her Geoden

dosage was increased due to her symptoms of anxiety, paranoia and post traumatic stress

nightmares, and she was continued on Neurontin and Effexor (AR 154). 

Nomes returned to Stairways on June 4, 2007 and Dr. Bailey’s treatment notes state that

Nomes was “5 months clean” (AR 153). Nomes reported that she could stay in transitional

housing for up to one year (AR 153). She was reportedly distressed over her health issues and

issues related to her ex-husband (AR 153). Dr. Bailey reported on mental status examination that

Nomes was neatly groomed with “dramatic makeup” (AR 153). She had increased

“suspiciousness” and she complained of flashbacks from prior drug use (AR 153). Dr. Bailey

reported she was tense and euthymic (AR 153). She was diagnosed with a mood disorder not

otherwise specified and polysubstance dependency (AR 153). Dr. Bailey continued her on

Effexor and increased her Neurontin and Geoden dosages (AR 153). 

Nomes was voluntarily admitted to Millcreek Community Hospital (“Millcreek”) in Erie

on August 7, 2007 (AR 172-176). She indicated that she had not used any illegal drugs or

alcohol since January 2007 (AR 175). Nomes reported experiencing auditory and visual

hallucinations, and “vaguely” claimed she had problems with hallucinations (AR 175). She

further complained of depression, mood instability and paranoia for a “long time” (AR 175). She

reported the occurrence of “disturbing visions” in which she could see herself “cutting herself

and committing suicide” (AR 175). Her medications upon admission were Effexor, Neurontin

and Geoden (AR 172). Mental status examination upon admission revealed that Nomes was

“generally uncooperative,” she refused to answer most questions, she appeared paranoid and

suspicious and her judgment and insight were significantly impaired (AR 176). Dr. Sean Su, her

6

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 6 of 18
treating psychiatrist, assigned her a GAF score of 35-40 upon admission (AR 176). During her 5

hospitalization, he discontinued the Geoden since Nomes claimed it was “not helpful” and added

Invega for her psychotic symptoms (AR 172-173). Nomes also participated in individual and

group therapy, and was subsequently discharged from Millcreek on August 9, 2007, after

showing “significant clinical improvement” (AR 173). Dr. Su diagnosed Nomes with psychotic

disorder not otherwise specified, “rule out schizophrenia paranoid type,” “[r]ule out psychosis

secondary to substance abuse,” and a history of polysubstance dependence (AR 176). He

assigned her a GAF score of 55 upon discharge (AR 173-174). 

Nomes testified at the administrative hearing that she resided in “transitional housing”

and had been there for approximately eight months (AR 195). Prior to that, she lived in a shelter

for victims of domestic violence for three months (AR 196). She indicated that she had been

“clean” since 2006 except for a brief relapse in December 2006 (AR 204-205). She last had

audio hallucinations in August 2007 prior to her admission at Millcreek (AR 211). Nomes

testified that she was able to perform household chores, attended AA and NA meetings, and saw

her family once per week (AR 213-214). She claimed she had suffered from psychiatric

problems since she was a child and had been on medication since she was fourteen years old (AR

216). At the time of the hearing she took Neurontin for mood stablization, Effexor for depression

and Invega for schizophrenia (AR 200). Nomes indicated that she performed some volunteer

work through the Mental Health Association when she felt “good” (AR 207; 218). She stated

she had bad days “[a] couple of times a week” where she stayed home and isolated herself, and

she continued to suffer from nightmares and flashbacks (AR 219-222). 

The ALJ asked Sam Edelman, the vocational expert, to consider an individual with the

same age, education and background as Nomes, who could perform simple work that did not

require direct interaction with the public, intensive supervision, changes in the work setting,

decision making, or a “competitive production rate pace” (AR 223-224). The vocational expert

testified that such an individual could perform work as an office cleaner, hotel/motel cleaner or

stock clerk (AR 224). 

Scores between 31 and 40 indicate “[s]ome impairment in reality testing or communication (e.g., speech is

5

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

relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work;

...).” Id. 

7

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 7 of 18
III. STANDARD OF REVIEW

This Court’s review is limited to determining whether the Commissioner’s decision is

“supported by substantial evidence.” 42 U.S.C. § 405(g); Adorno v. Shalala, 40 F.3d 43, 46 (3

rd

Cir. 1994). The Court may not undertake a de novo review of the Commissioner’s decision or reweigh the evidence of record. Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-1191

(3 Cir. 1986). Congress has clearly expressed its intention that “[t]he findings of the rd

Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be

conclusive.” 42 U.S.C. § 405(g). Substantial evidence “does not mean a large or considerable

amount of evidence, but rather such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565,108 S.Ct. 2541, 101

L.Ed.2d 490 (1988) (internal quotation marks omitted). As long as the Commissioner’s decision

is supported by substantial evidence, it cannot be set aside even if this Court “would have

decided the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3 Cir. 1999). rd

“Overall, the substantial evidence standard is a deferential standard of review.” Jones v.

Barnhart, 364 F.3d 501, 503 (3 Cir. 2004). rd

In an action in which review of an administrative agency’s determination is sought, the

agency’s decision cannot be affirmed on a ground other than that actually relied upon by the

agency in making its decision. In Securities & Exchange Commission v. Chenery Corp., 332

U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), the Supreme Court explained:

When the case was first here, we emphasized a simple but

fundamental rule of administrative law. That rule is to the effect

that a reviewing court, in dealing with a determination or judgment

which an administrative agency alone is authorized to make, must

judge the propriety of such action solely by the grounds invoked by

the agency. If those grounds are inadequate or improper, the court

is powerless to affirm the administrative action by substituting

what it considers to be a more adequate or proper basis. To do so

would propel the court into the domain which Congress has set

aside exclusively for the administrative agency.

 

Chenery Corp., 332 U.S. at 196. The United States Court of Appeals for the Third Circuit has

recognized the applicability of this rule in the Social Security disability context. Fargnoli v.

Massanari, 247 F.3d 34, 44, n. 7 (3 Cir. 2001). Thus, the Court’s review is limited to the four rd

corners of the ALJ’s decision. 

8

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 8 of 18
IV. DISCUSSION

In order to establish a disability under the Act, a claimant must demonstrate a “medically

determinable basis for an impairment that prevents him [or her] from engaging in any

‘substantial gainful activity’ for a statutory twelve-month period.” Stunkard v. Secretary of

Health & Human Services, 841 F.2d 57, 59 (3 Cir. 1988); Kangas v. Bowen, 823 F.2d 775, 777 rd

(3 Cir. 1987); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is considered to be rd

unable to engage in substantial gainful activity “only if his [or her] physical or mental

impairment or impairments are of such severity that he [or she] is not only unable to do his [or

her] previous work but cannot, considering his [or her] age, education, and work experience,

engage in any other kind of substantial gainful work which exists in the national economy.” 42

U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 

To support his or her ultimate findings, an administrative law judge must do more than

simply state factual conclusions. He or she must make specific findings of fact. Stewart v.

Secretary of Health, Education & Welfare, 714 F.2d 287, 290 (3 Cir. 1983). The administrative rd

law judge must consider all medical evidence contained in the record and provide adequate

explanations for disregarding or rejecting evidence. Weir on Behalf of Weir v. Heckler, 734 F.2d

955, 961 (3 Cir. 1984); Cotter v. Harris, 642 F.2d 700, 705 (3 Cir. 1981). rd rd

The Social Security Administration (“SSA”), acting pursuant to its legislatively delegated

rulemaking authority, has promulgated a five-step sequential evaluation process for the purpose

of determining whether a claimant is “disabled” within the meaning of the Act. The United

States Supreme Court recently summarized this process as follows:

If at any step a finding of disability or non-disability can be made,

the SSA will not review the claim further. At the first step, the

agency will find non-disability unless the claimant shows that he is

not working at a “substantial gainful activity.” [20 C.F.R.] §§

404.1520(b), 416.920(b). At step two, the SSA will find nondisability unless the claimant shows that he has a “severe

impairment,” defined as “any impairment or combination of

impairments which significantly limits [the claimant’s] physical or

mental ability to do basic work activities.” §§ 404.1520(c),

416.920(c). At step three, the agency determines whether the

impairment which enabled the claimant to survive step two is on

the list of impairments presumed severe enough to render one

disabled; if so, the claimant qualifies. §§ 404.1520(d), 416.920(d). 

If the claimant’s impairment is not on the list, the inquiry proceeds

to step four, at which the SSA assesses whether the claimant can

do his previous work; unless he shows that he cannot, he is

determined not to be disabled. If the claimant survives the fourth

9

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 9 of 18
stage, the fifth, and final, step requires the SSA to consider socalled “vocational factors” (the claimant’s age, education, and past

work experience), and to determine whether the claimant is capable

of performing other jobs existing in significant numbers in the

national economy. §§ 404.1520(f), 404.1560(c), 416.920(f),

416.960(c).

Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) (footnotes

omitted). 

Section 105 of the Contract With America Advancement Act of 1996 (“CWAAA”)

amended Titles II and XVI to provide that “an individual shall not be considered to be disabled”

under the Social Security Act if “alcoholism or drug addiction” would be “a contributing factor

material to the Commissioner’s determination that the individual is disabled.” Pub. L. No. 104-

121, § 105; 110 Stat. 847, 852-853 (1996); 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J). The

Commissioner has promulgated regulations to implement the statutory mandate of the CWAAA. 

20 C.F.R. §§ 404.1535, 416.935. Under the applicable regulations, the critical question is

whether a claimant who is disabled as a result of drug or alcohol use would remain disabled if he

or she were to stop using those substances. 20 C.F.R. §§ 404.1535(b)(1), 416.935(b)(1). If his or

her disability would persist even after a cessation of drug or alcohol abuse, he or she is entitled to

an award of benefits. 20 C.F.R. §§ 404.1535(b)(2)(ii), 416.935(b)(2)(ii). Conversely, if a

claimant’s disability would not remain in the absence of drug or alcohol abuse, a finding of

“materiality” is warranted, thereby requiring a denial of benefits. 20 C.F.R. §§ 404.1535(b)(2)(I),

416.935(b)(2)(I). 

In summary, the Commissioner’s disability determination must proceed in four discrete

stages: 

First, [the Commissioner] must consider all of the claimant’s

limitations and then use the usual five-step sequential analysis to

decide whether the claimant is disabled. Second, the

Commissioner must determine whether there is medical evidence

of an Alcohol Use Disorder, as defined in the DSM. When such

medical evidence exists, the Commissioner must identify which of

the claimant’s limitations would remain if he stopped using

alcohol. Finally, the Commissioner must return to the five-step

analysis to evaluate whether the claimant’s remaining limitations

would be disabling.

Warren v. Barnhart, 2005 WL 1491012 at *10 (E.D.Pa. 2005).

Here, the ALJ determined that Nomes had not engaged in substantial gainful activity

subsequent to her alleged onset date (AR 15). Nomes was found to be suffering from bipolar

10

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 10 of 18
affective disorder, post-traumatic stress disorder, substance addiction disorder, substance-induced

psychosis, and hepatitis C (AR 15-16). Her bipolar affective disorder, post-traumatic stress

disorder, substance addiction disorder and substance-induced psychosis were deemed to be

“severe” within the meaning of 20 C.F.R. §§ 404.1520(a)(4)(ii) and 416.920(a)(4)(ii), while her

hepatitis C was deemed to be “non-severe” (AR 15-16). At the third step of the sequential

evaluation process, the ALJ concluded that, when Nomes was actively abusing drugs, a finding

of per se disability was warranted under Listings 12.04 and 12.09 of the 6

“12.04 Affective Disorders: Characterized by a disturbance of mood, accompanied by a full or partial

6

manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally

involves either depression or elation.

The required level of severity for these disorders is met when the requirements in both A and B are

satisfied, or when the requirements in C are satisfied.

A. Medically documented persistence, either continuous or intermittent, of one of the following:

1. Depressive syndrome characterized by at least four of the following:

a. Anhedonia or pervasive loss of interest in almost all activities; or

b. Appetite disturbance with change in weight; or

c. Sleep disturbance; or

d. Psychomotor agitation or retardation; or

e. Decreased energy; or

f. Feelings of guilt or worthlessness; or

g. Difficulty concentrating or thinking; or

h. Thoughts of suicide; or

i. Hallucinations, delusions, or paranoid thinking; or

2. Manic syndrome characterized by at least three of the following:

a. Hyperactivity; or

b. Pressure of speech; or

c. Flight of ideas; or

d. Inflated self-esteem; or

e. Decreased need for sleep; or

f. Easy distractability; or

g. Involvement in activities that have a high probability of painful consequences which are not recognized;

or

h. Hallucinations, delusions or paranoid thinking; or

3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both

manic and depressive syndromes (and currently characterized by either or both syndromes);

AND

B. Resulting in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

3. Marked difficulties in maintaining concentration, persistence, or pace; or

4. Repeated episodes of decompensation, each of extended duration;

OR

C. Medically documented history of a chronic affective disorder of at least 2 years’ duration that has

caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently

attenuated by medication or psychosocial support, and one of the following:

1. Repeated episodes of decompensation, each of extended duration; or

11

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 11 of 18
Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1 (AR 16). 

Although the ALJ concluded that Nomes’ impairments would remain “severe” if she

were to stop using drugs, he determined that her impairments would not meet the Listings 12.04

and 12.09 (AR 16-17). In accordance with 20 C.F.R. §§ 404.1545 and 416.945, the ALJ

assessed Nomes’ residual functional capacity as follows:

If the claimant stopped the substance abuse, the claimant would

have the residual functional capacity to understand, remember, and

carry out only simple instructions. She could not interact directly

with the public or tolerate intensive supervision. She could not

tolerate significant changes in the work setting and should not be

called upon to make decisions or to perform at a competitive rate

pace (such as in an assembly line) (AR 17). 

Given the applicable residual functional capacity and vocational assessments, the ALJ

determined that, in the absence of drug abuse, Nomes would be capable of working as an office

cleaner, a hotel cleaner, or a stock clerk (AR 19). The vocational expert’s testimony established

that these jobs existed in the national economy for purposes of 42 U.S.C. §§ 423(d)(2)(A) and

1382c(a)(3)(B) (AR 224). Therefore, Nomes’ drug abuse was found to be “material” to the

Commissioner’s finding of per se disability, and her applications for DIB and SSI benefits were

denied on the basis of the CWAAA (AR 20).

Nomes contends that the ALJ’s conclusion that her drug usage was material to a finding

of her disability is not supported by substantial evidence. The CWAAA provides that “an

individual shall not be considered to be disabled . . . if alcoholism or drug addiction would . . . be

a contributing factor material to the Commissioner’s determination that the individual is

disabled.” 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J). The Commissioner has promulgated

regulations implementing this statutory mandate. Those regulations provide:

§ 404.1535 How we will determine whether your drug

addiction or alcoholism is a contributing factor material to the

determination of disability.

(a) General. If we find that you are disabled and have

medical evidence of your drug addiction or alcoholism, we must

determine whether your drug addiction or alcoholism is a

2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in

mental demands or change in the environment would be predicted to cause the individual to decompensate; or

3. Current history of 1 or more years’ inability to function outside a highly supportive living arrangement,

with an indication of continued need for such an arrangement.”

20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.04.

12

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 12 of 18
contributing factor material to the determination of disability. 

(b) Process we will follow when we have medical evidence

of your drug addiction or alcoholism. (1) The 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. 

(2) In making this determination, we will evaluate which of

your current physical and mental limitations, upon which we based

our current disability determination, would remain if you stopped

using drugs or alcohol and then determine whether any or all of

your remaining limitations would be disabling. 

(i) If we determine that your remaining limitations would

not be disabling, we will find that your drug addiction or

alcoholism is a contributing factor material to the determination of

disability. 

(ii) If we determine that your remaining limitations are

disabling, you are disabled independent of your drug addiction or

alcoholism and we will find that your drug addiction or alcoholism

is not a contributing factor material to the determination of

disability. 

20 C.F.R. § 404.1535. Given the language of the regulations, an initial finding of disability is a 7

condition precedent to an inquiry into whether a finding of materiality is warranted. 

Brueggemann v. Barnhart, 348 F.3d 689, 694 (8 Cir. 2003); Bustamante v. Massanari, 262 F.3d th

949, 954-955 (9 Cir. 2001). th

In this case, the ALJ initially found Nomes to be per se disabled under Listings 12.04 and

12.09 (AR 16). The Listing of Impairments describes impairments which preclude an adult 8

The regulations directly quoted by the Court are the ones governing materiality determinations with respect

7

to claims for DIB benefits under Title II. 20 C.F.R. § 404.1535. Except for language indicating that a claimant may

be eligible for SSI benefits because of his or her “age or blindness,” the regulations governing materiality

determinations under Title XVI are the same as those governing materiality determinations under Title II. 20 C.F.R.

§ 416.935.

“12.09 Substance Addiction Disorders: Behavioral changes or physical changes associated with the regular

8

use of substances that affect the central nervous system.

The required level of severity for these disorders is met when the requirements in any of the following (A

through I) are satisfied.

A. Organic mental disorders. Evaluate under 12.02.

B. Depressive syndrome. Evaluate under 12.04.

C. Anxiety disorders. Evaluate under 12.06.

D. Personality disorders. Evaluate under 12.08.

E. Peripheral neuropathies. Evaluate under 11.14.

F. Liver damage. Evaluate under 5.05.

G. Gastritis. Evaluate under 5.00.

H. Pancreatitis. Evaluate under 5.08.

I. Seizures. Evaluate under 11.02 or 11.03.”

13

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 13 of 18
from engaging in substantial gainful activity without regard to his or her age, education or work

experience. Knepp v. Apfel, 204 F.3d 78, 85 (3 Cir. 2000). In order to qualify as per se rd

disabled at the third step of the analysis, a claimant must show that his or her impairment (or

combination of impairments) either “matches” a Listing or is “equivalent” to a Listing. Sullivan

v. Zebley, 493 U.S. 521, 530-531, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990). An impairment

“matches” a Listed Impairment only if it satisfies all of the specified medical criteria contained

within the applicable Listing. Id. at 530. An impairment is “equivalent” to a Listed Impairment

only where it is supported by medical findings equal in severity to all of the criteria applicable to

the most similar Listing. Id. at 531. The burden is on the claimant to present evidence in support

of his or her allegation of per se disability. Williams v. Sullivan, 970 F.2d 1178, 1186 (3 Cir. rd

1992). 

In this regard, the ALJ made the following findings:

After careful consideration of all the evidence, the undersigned

finds that the claimant is credible concerning the following

symptoms and limitations, but only when the effects of active drug

addiction are considered. She has a long history of addiction to the

drugs listed above and to heroin, and has used such drugs orally,

intravenously, and via inhalation (Exhibits 1F, 4F). During periods

of drug intoxication she was subject to hallucinations, and as a

result she received the diagnosis of substance-induced psychosis

(Exhibits 4F, 6F, 7F). It is clear from recent records that treatment

with anti-psychotic medication completely controls symptoms of

psychosis (Exhibit 8F). The Administrative Law Judge finds that

when the claimant takes medication as prescribed and abstains

from drug and alcohol use she is free of psychotic symptoms, but

that when she is noncompliant and uses drugs, she tends to

experience psychotic manifestations including command

hallucinations with a self-destructive quality (Exhibit 8F). 

The record shows that when the claimant is actively abusing

substances and experiences the aforementioned psychotic

disturbance, she is markedly limited in her abilities to interact

appropriately with others or to sustain concentration. She has, in

fact, experienced hallucinations commanding her to assault others

and she has been jailed in the past for assault and resisting arrest

(Exhibit 1F). She also, while active in her addiction, has

experienced manic symptoms that would not permit her to sustain

a routine, even in simple low-stress work (Exhibits 1F, 4F). 

Based on the foregoing, it is clear to the Administrative Law Judge

that when the claimant is actively abusing drugs her mental

impairment is so severe that it meets the diagnostic “A” criteria of

20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.09.

14

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 14 of 18
Listing 12.04 (psychomotor agitation; difficulty concentrating or

thinking; suicidal ideation; and hallucinations). As a result, she

experiences marked limitation in two of the broad functional areas

covered under the severity-measuring “B” criteria of the same

Listing. This means that when she uses drugs she satisfies Listing

12.09 for substance addiction disorder, via the cross-reference

Listing 12.04.

 

(AR 16). Thus, the ALJ’s finding of per se disability was based on a belief that Nomes had

“marked” limitations during her periods of “drug intoxication” (AR 16). 

The ALJ further found however, that if Nomes stopped her substance use, she would not

meet a Listing: 

As noted above the claimant’s psychotic symptoms are entirely

controllable on medication with no residual symptoms - in fact,

when she voluntarily took herself off the new medication Invega in

August 2007 following a brief psychotic spell she did not

experience recurrent hallucinations (Exhibit 7F). She is able to

maintain a relatively normal mood, is not unduly anxious, and does

not demonstrate psychomotor agitation or retardation. She is not

suicidal or homicidal, and she has good insight into her condition

and the role her past drug abuse has played in it. She is able to

maintain excellent grooming and hygiene. She has no pressure of

speech. She relates appropriately to medical staff and is able to

interact with peers (Exhibit 4F). She is able to contract for her

own safety (Exhibit 8F). She has no apparent loss of ability to

maintain ordinary activities of daily living other than restrictions

placed as a result of past legal entanglements and a need for

protective housing due to abuse from a former spouse or paramour

(Exhibit 7F). She spoke in a clear and coherent manner at the

hearing and appeared to understand both the nature of the

proceeding and the content of the questions being asked.

(AR 17). 

A close review of the evidentiary record in this case reveals that the ALJ’s materiality

finding is not supported by substantial evidence. The record fails to reveal any meaningful

difference in Nomes’ functional limitations while abstinent and during periods of drug usage. On

May 9, 2006, Dr. Bailey noted that Nomes had “a history of aggression while under the influence

of substances” (AR 85). In that same examination report, however, Dr. Bailey also observed that

Nomes had experienced “mood swings,” “full-blown manias” and “depression” during periods of

abstinence (AR 83). Dr. Bailey was left with the impression that Nomes had a bipolar disorder,

given “her history of marked manic symptoms in the absence of substances” (AR 86) (emphasis 9

Dr. Bailey’s examination report is “Exhibit 1,” as cited in the ALJ’s opinion (AR 2; 16; 83-87).

9

15

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 15 of 18
added). The documentary record indicates that Nomes’ substance addiction was in “early

remission” in August 2006, when she was hospitalized at St. Vincent (AR 120). Moreover, 10

according to the documentary record, Nomes told Dr. Su that she had not consumed illegal drugs

or alcohol during the eight months immediately preceding her August 2007 hospitalization at

Millcreek and had been taking her medications at the time of her admission (AR 172; 175). At

the hearing, Nomes testified that she had experienced “relapses” of her drug addiction in January

2006 and December 2006, but that she had not abused drugs or alcohol during the intervening

and subsequent periods of time (AR 204-205). According to the medical records, however, these

“relapses” did not coincide with Nomes’ hospitalizations in August 2006 and August 2007.

In light of the foregoing analysis, the ALJ’s materiality determination cannot be affirmed. 

The only remaining question is whether a judicially-ordered award of benefits is proper, or

whether the case should be remanded to the Commissioner for further administrative

proceedings. An immediate award of benefits is called for only where the evidentiary record has

been fully developed, and where the evidence as a whole clearly points in favor of a finding that

the claimant is statutorily disabled. Morales v. Apfel, 225 F.3d 310, 320 (3 Cir. 2000). That rd

standard is not met here. The record does not contain a residual functional capacity assessment

from a treating or examining physician. The only opinion evidence concerning Nomes’ ability to

engage in work-related activities is Dr. Glover’s consultative report, which predated Nomes’

hospitalizations at St. Vincent and Millcreek (AR 102-117). Furthermore, even if the record had

conclusively established that Nomes’ substance abuse was not material to her “disability” during

the entire period of time between her alleged onset date and the date of the ALJ’s decision, a

question would remain as to whether a finding of materiality would be warranted with respect to

a subset of that time period. Although Nomes’ alleged onset date was November 5, 2005, her

counsel conceded at the hearing that Nomes’ substance abuse may have been “material” to her

disability prior to January 2006 (AR 226-227). The documentary record contains no evidence

predating February 16, 2006 (AR 2; 90-92). For these reasons, further development of the record

is needed. 

The record of Nomes’ psychiatric hospitalization at St. Vincent is “Exhibit 4F,” which is cited in the

10

ALJ’s opinion (AR 2; 16; 118-121).

16

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 16 of 18
V. CONCLUSION

The Court expresses no opinion as to whether Nomes is entitled to DIB and SSI benefits

under the Act. It suffices to say that the Commissioner’s decision is not “supported by

substantial evidence” within the meaning of § 405(g), and that further administrative proceedings

are required. Accordingly, the motion for summary judgment filed by the Commissioner will be

denied, and the motion for summary judgment filed by Nomes will be granted only to the extent

she seeks a remand for further consideration. An appropriate Order follows. 

17

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 17 of 18
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KRISTA L. NOMES, )

)

Plaintiff, )

)

v. ) Civil Action No. 09-112 Erie

)

MICHAEL J. ASTRUE, )

Commissioner of Social Security, )

)

Defendant. )

ORDER

AND NOW, this 3 day of August, 2010, and for the reasons set forth in the rd

accompanying Memorandum Opinion, IT IS HEREBY ORDERED that the Plaintiff’s Motion

for Summary Judgment [Doc. No. 7] is GRANTED only to the extent she seeks a remand for

further consideration by the Commissioner. The case is hereby REMANDED to the

Commissioner of Social Security for further proceedings consistent with the accompanying

Memorandum Opinion. 

IT IS FURTHER ORDERED that the Defendant’s Motion for Summary Judgment [Doc.

No. 9] is DENIED.

The clerk is directed to mark the case closed. 

s/ Sean J. McLaughlin

United States District Judge

cm: All parties of record. 

18

Case 1:09-cv-00112-SJM Document 11 Filed 08/03/10 Page 18 of 18