1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TYRONE HARPER, : Case No. 4:13-CV-02811

:

Plaintiff, : (Judge Brann)

:

v. : (Magistrate Judge Cohn)

:

CAROLYN W. COLVIN, :

ACTING COMMISSIONER OF :

SOCIAL SECURITY :

:

Defendant. :

MEMORANDUM

March 24, 2015

Before the Court is the Report and Recommendation of Magistrate Judge 

Gerald B. Cohn recommending that the Court affirm the Social Security 

Commissioner's decision denying Plaintiff disability insurance benefits and 

Plaintiff's objections thereto. ECF Nos. 20,21. After a thorough examination of 

the record, and for the reasons that follow, the Administrative Law Judge (“ALJ”) 

did not base his decision on substantial evidence. Therefore, the case is remanded 

to the Commissioner for further proceedings.

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 1 of 25
2

I. PROCEDURAL HISTORY

On February 24, 2011, Plaintiff, (“Harper”), filed an application for 

Disability Insurance Benefits ("DIB") and Social Security Income ("SSI") alleging 

disability, beginning June 2010 as a result of mental impairments. Tr. 160-69. 

Benefits were initially denied. Harper then requested and was granted an 

administrative hearing. On May 25, 2012, Harper appeared before the ALJ where 

Harper, who was represented by counsel, his wife, and a vocational expert 

testified. Tr. 103-34. The ALJ, using the sequential evaluation process for 

disability, issued an unfavorable decision. Tr. 21-37. On September 9, 2013, the 

Appeals Council denied Harper’s request for review making the ALJ's findings the 

final decision of the Commissioner. Tr. 1-7, 19-20.

On November 18, 2013, Harper appealed the final decision to this Court and 

the case was referred to Magistrate Judge Cohn. The Magistrate Judge issued his 

Report and Recommendations on February 12, 2015 and concluded that the ALJ’s 

decision was supported by substantial evidence. ECF No. 20. He recommended 

that the Court deny Harper's appeal and affirm the decision of the Commission. 

ECF No. 20. Harper filed objections on March 2, 2015. ECF No. 21.

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 2 of 25
3

II. FACTUAL BACKGROUND

Harper attended the Wyoming Valley Alcohol and Drug (WVADS) Services 

Inc. from September 2009 to June 2010. Tr. 342. On June 9, 2010, Harper 

presented to the emergency room at Wyoming Valley Healthcare complaining of 

suicidal thoughts, with a plan to jump off a bridge and thoughts of killing his wife 

and her alleged lover. Tr. 299. At the time of his admission, he was alert and 

oriented, his memory was "normal", and his affect was "flat." Tr. 300-01. Harper 

was then given a psychiatric evaluation. Tr. 304. His mental status exam indicated 

that he was alert, oriented, neat with good hygiene and had appropriate 

psychomotor activity. Tr. 305. His mood was depressed and anxious, he denied 

hallucinations and delusions, his memory and recall were fair, and his insight and 

judgment were poor. Tr. 307. 

Harper was diagnosed with bipolar disorder and was recommended for

transfer to a psychiatric hospital. Tr. 309. Later that day, Harper was transferred 

to First Hospital Wyoming Valley. Id. On admission, he was alert and oriented 

with depressed mood, impaired insight/judgment, and poor impulse control. Tr. 

311.

On November 4, 2010, Harper was transferred to Clarks Summit State 

Hospital ("Clarks Summit") for depression. Tr. 324. Upon his admission at this 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 3 of 25
4

facility, it was recorded that he no longer had suicidal or homicidal ideation. Tr. 

324. Also, he had no recent history of assaultive or aggressive behavior, but was 

described as becoming agitated at times. Tr. 324. His mental status examination 

indicated that he was mostly cooperative but was "somewhat slightly guarded with 

limited eye contact." Tr. 325. His thought content "revealed no overt delusions"

and "there were no reported hallucination." Tr. 325. His intellectual level appeared 

to be low average, his insight and judgment were limited, and his impulse control 

seemed fair. Tr. 325. He was assigned a GAF score of 40. Tr. 328. 

Doctors found that Harper's condition was improving and he was compliant 

with his medication and treatment. Tr. 339. Certain stressors, for example, his 

wife's incarceration, had been alleviated since her release from custody. Tr. 339. 

Harper was discharged on January 19, 2011 with a diagnosis of " Major 

Depression, Single Episode" and given a GAF score of 70. Tr. 328. At the time, 

he denied suicidal or homicidal ideation and reported no hallucinations. Tr. 327.

On February 18, 2011, Harper was evaluated at the Community Counseling 

Service (“Community Counseling”). Tr. 372. He reported that he had been 

released from Clarks Summit after being treated for depression. Tr. 372. He stated 

that he was hearing voices, but not hearing them at the present time, and denied

suicidal or homicidal ideation. Tr. 372. On examination, his mood and affect were 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 4 of 25
5

"bright", his behavior was "controlled", his appearance was" neat", his insight was 

"fair" and his judgment was "questionable". Tr. 372. He was diagnosed with 

schizoaffective disorder and borderline mental retardation. Tr. 372. A physician 

note from the same date, however, indicated that Harper denied experiencing any 

delusions and hallucinations. Tr. 378. He was prescribed Celexa, Seroquel, 

Cogentin, and Lithium. Tr. 373. 

On February 24, 2011, Harper applied for DIB and SSI. Tr. 160-69. He 

submitted a Function Report where he reported problems sleeping, dressing, 

bathing, caring for his hair, and shaving. Tr. 277. He explained that he "sometimes 

needs to be told to shower" and that his wife has to shave him because he cannot 

concentrate. Tr. 277. He reported that he needed reminders from his wife to take 

his medication and to take care of himself. Tr. 277. He also claimed that he went

outside “ very rarely” because he is "paranoid, confused, anxious, and cannot be 

around a lot of people." Tr. 279. He reported “seeing things that aren’t there, and 

problems with concentration, memory, understanding, distraction and confusion.” 

Tr. 281. He also reported having problems handling stress and changes in routine. 

Tr. 282. Harper’s wife also submitted a Function Report, which indicated the same 

limitations as Harper’s Function Report. Tr. 267-74. She explained that she 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 5 of 25
6

“noticed a substantial change in his mood and that he complained of auditory and 

visual hallucinations.” Tr. 274. 

On March 22, 2011, Harper reported increased hostility and hallucinations to 

doctors at the Community Counseling. Tr. 379. The doctor's notes indicated that 

Harper’s hallucinations were not "24/7 but seemed 'more frequent.'" Tr. 379. The 

notes revealed that Harper's schizoaffective disorder was worsening and his 

Seroquel dosage was increased. Tr. 379. Doctors also encouraged compliance 

with his medication. Tr. 379. 

On Harper's subsequent visit to Community Counseling on April 15, 2011,

he again reported experiencing occasional non-commanding auditory 

hallucinations. Tr 380. Harper was compliant with his medication and he reported 

"no anxiety" but "poor concentration." Tr. 380. He had mild psychomotor 

retardation, blunted and inattentive affect, and a neutral mood. Tr. 380. 

On May 13, 2011, at his next Community Counseling appointment, Harper 

reported irritability, occasional visual hallucinations such as seeing shadow and 

lights, but no auditory hallucination. Tr. 381. He was alert and oriented, clean, 

"argumentative but fairly cooperative," had blunted affect, irritable mood, and poor 

insight/judgment. Tr. 381. Harper told his physicians that he was not complaint 

with his medication and had been missing doses. Tr. 381. 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 6 of 25
7

On May 26, 2011, Harper had a consultative exam with a state agency 

psychologist, Dr. Sara Cornell, Psy. D. Tr. 391. He reported that his depression 

began in 2008 and his symptoms included sadness, crying, fatigue, and social 

isolation. Tr. 389. He stated that he had no friends, experienced irritability and 

preferred to stay away from public places and people due to this irritability and 

mood swings. Tr. 389. Harper reported experiencing hallucinations, voices telling 

him what to do and seeing things, like mice or shapeless objects running across the 

floor of his house. Tr.390. Dr. Cornell noted that Harper exhibited “no tics, 

repetitive, stereotypical or odd movements, made fair eye contact, and had fair 

social skills.” Tr. 391. Harper had difficulty providing examples as to the likely 

outcomes of his behaviors or what he would do in various imaginary situations and 

could not perform tests of counting and seriation such as counting backwards from 

100 by 7s. Tr. 391. 

Harper was "appropriately dressed and groomed,” his hygiene was "fair" and 

he was "polite, pleasant and cooperative." Tr. 389. He was alert and oriented with 

spontaneous, clear, coherent and logical speech "but with some evidence of a 

formal thought disorder." Tr. 389. His thought process was "mostly relevant and 

goal-directed," and he "exhibited good attention and concentration." Tr. 389. 

Harper reported symptoms of depression, irritability, mood swings, aggression, 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 7 of 25
8

panic attacks and paranoia. Tr. 389. He also informed Dr. Cornell that he only felt 

safe at his home. Tr. 390. 

Dr. Cornell diagnosed him with "bipolar disorder, most recent episode 

depressed, severe with psychotic features," "panic disorder with agoraphobia," 

"social anxiety," and antisocial personality disorder. Tr. 391. She assigned him a 

GAF score of 451

On June 10, 2011, Harper followed up at Community Counseling and 

reported increased irritability, occasional agitation and occasional auditory 

hallucinations. Tr. 376. Upon examination, he was found to be alert, clean, and 

cooperative. Tr. 376. His affect was flat/argumentative and his mood was mildly 

anxious. Tr. 376. His "memory/intelligence" was "intact with mild mental 

retardation" and his "insight/judgment" was poor. Tr. 376. 

. Tr. 391. Dr. Cornell opined that Harper had moderate 

limitations in understanding, remembering and carrying out instructions and 

interacting appropriately with the public, supervisors, and co-workers. Tr. 387. 

She also opined that Harper had marked limitations in his ability to make 

judgments on simple work related decisions, respond appropriately to work 

pressures, and to respond appropriately to changes in the work setting. Tr. 387. 

 1 The GAF scale, designed by the American Psychiatric Association, ranges from zero to one hundred and assesses a 

person's psychological, social and occupational function. Diagnostic and Statistical Manual of Mental Disorders,

(DSM–IV–R) (4th ed.2000). A score between 41 and 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). Id.

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 8 of 25
9

On June 21, 2011, Dr. James Vizza, Psy. D, a non-examining state agency 

psychologist, reviewed Harper’s file including Dr. Cornell’s consultative exam. 

Tr. 106. He opined that Harper’s statements were only "partially credible" based 

on the record. Tr. 106. He opined that Harper had a moderate limitation in 

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

persistence or pace. Tr. 107. He concluded that Harper "can perform simple 

routine, repetitive work in a stable environment." Tr. 109. 

Harper visited Community Counseling again in August 2011, November 

2011, January 2012, and March, 2012. At each of these visits, he complained of 

non-commanding auditory hallucinations, racing thoughts and was diagnosed as 

schizoaffective and with borderline mental retardation. Tr. 406-11. His mood was 

assessed as neutral and his affect as flat or blunted during his visits. Id. During his 

March 15, 2012 visit with Community Counseling doctors, Harper continued to

complain of occasional non-commanding auditory hallucinations. Tr. 406. He also 

complained of mood liability and of racing thoughts. Id. He denied paranoia or 

delusions and he reported that his anxiety was controlled. Id. His insight and 

judgment were poor and his thought process was rambling but still coherent. Tr. 

407. 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 9 of 25
10

On his last visit with Community Counseling on May 11, 2012, prior to his 

ALJ hearing, Harper told clinicians that he wanted an appointment every month. 

Tr. 403-04. His wife indicated that he has been “shaking a lot, had blurred vision, 

was dropping things and experiencing some memory loss.” Tr. 403. She also 

stated that Harper was irritable, was isolating himself and hated crowds. Id. He 

denied having hallucinations or delusions and his judgment, memory and insight 

were described as "poor." Id. 

Harper also began seeing Dr. Cornell for treatment on a monthly basis from 

January 25, 2012. During their first session, she discussed Harper’s difficulty in 

coping with depression and coping techniques Harper could use to help lessen his 

depression. Tr. 398. Dr. Cornell noted that Harper "presented well and in good 

spirits." Tr. 398. His next session was on February 18, 2012 and there, Dr. 

Cornell observed that Harper presented well and in good spirits. Tr. 397. Harper

was hoping to use an upcoming income tax return to get an apartment with his 

wife, and "state[d] that perhaps [his] wife could resume working, although he was 

encouraged to discuss [with] his wife rather than assume she would support them." 

Id. Harper reported that he had less anger and frustration and he was spending 

most of his time watching TV and sleeping. Id. His next appointment was on 

March 7, 2012. Again, Dr. Cornell observed that Harper presented well and in 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 10 of 25
11

good spirits. Tr. 396. He reported that he had been more productive since his last 

visit. Id. 

On April 11, 2012, Harper had a follow up session with Dr. Cornell where

he reported constant depression. Tr. 395. Dr. Cornell observed that he “presented 

well but stated continued thoughts on disability hearing.” Id. Harper stated that 

“he was banking on being approved for SSD.” Id. Harper also told Dr. Cornell

that" he did not want to think about having to work and has been his encouraging 

wife to work but she refuses unless he will." Id. Harper noted that "he does not 

want to 'mess up' disability claim 'by working as well as past difficulty due to his 

poor coping skills.'" Id.

On May 16, 2012, Dr. Cornell completed a medical source statement. Tr. 

399-400. She opined that Harper had a “poor to no” ability to remember worklike procedures, maintain attention for two hour segments, maintain regular 

attendance and be punctual within customary, usually strict tolerances. Id. She 

also opined that Harper would have "poor to no" ability to complete a normal 

workday and workweek without interruptions from psychologically based 

symptoms, and perform at a consistent pace without an unreasonable number and 

length of rest periods. Tr. 399. Finally, she also indicated that Harper generally 

had a “poor to no” ability to do semiskilled or skilled work, to interact 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 11 of 25
12

appropriately with the general public, to travel in unfamiliar areas, and to use 

public transportation. Id. She also concluded that Harper would miss three or 

more days of work per month due to his mental impairment. Tr. 399.

III. STANDARD OF REVIEW

District judges have wide discretion on how they choose to treat reports and

recommendations from magistrate judges. See United States v. Raddatz, 447 U.S. 

667, 680, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). “Whether or not objections are 

made to the magistrate's report, under § 636(b)(1) (C) the district court ‘may 

accept, reject or modify, in whole or in part, the findings or recommendations 

made by the magistrate.” Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987), 

cert denied, 484 U.S. 837, 108 S.Ct. 120, 98 L.Ed.2d 79 (1987). When objections 

are filed, the Court must conduct a de novo review of the portions of the Report 

and Recommendation to which the parties object. 28 U.S.C. § 636(b)(1) (C). See 

also, Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

While the Court may conduct a de novo review of the Magistrate Judge's 

Report and Recommendation, it does not conduct a de novo review of the ALJ's 

determination to deny benefits. Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 

(3d Cir. 1986). Rather, on appeal of a denial of Social Security benefits, the Court 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 12 of 25
13

merely ensures that the ALJ's decision is supported by substantial evidence in the 

record. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005); Adorno v. 

Shalala, 40 F.3d 43, 46 (3d Cir. 1994). “Substantial evidence” is that which “a 

reasonable mind might accept as adequate to support a conclusion.” Richardson v. 

Perales, 402 U.S. 389, 407, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Jesurum v. 

Secretary of the United States Dep't of Health & Human Servs., 48 F.3d 114, 117 

(3d Cir. 1995). Such evidence may be less than a preponderance, Richardson, 402 

U.S. at 401; Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979), but “must 

be sufficient to support the conclusion of a reasonable person after considering the 

evidentiary record as a whole, not just the evidence that is consistent with the 

agency's findings.” Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190-91 

(3d Cir. 1986) (quoting R. Pierce, S. Shapiro & P. Verkuil, Administrative Law 

and Process 358-59 (1985)). If the ALJ's findings of fact are supported by 

substantial evidence, the Court is bound by those findings. Fargnoli v. Massanari,

247 F.3d 34, 38 (3d Cir. 2001).

IV. DISCUSSION

Harper objects to the ALJ's findings on several grounds. First, he contends 

that the ALJ did not give proper weight to the treating psychologist’s opinion. 

Second, he contends that the ALJ failed to present all of Harper’s limitations to the 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 13 of 25
14

vocational expert in his hypothetical question. Third, he argues that ALJ 

improperly discounted the credibility of Harper and that of Harper’s wife.

a. Substantial evidence does not support the ALJ's finding that the 

treating psychologist's opinions were entitled to little weight.

Harper argues that the ALJ erred by failing to give controlling weight to his

treating psychologist. As a general rule, “treating physicians' report 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.’” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting

Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)); 20 C.F.R. § 404.1527(d)(2) 

(controlling weight is appropriate where treating physician opinion is wellsupported by medical evidence and consistent with other substantial evidence in 

the record). If, however, a treating physician's opinion conflicts with other 

medical evidence, the ALJ is free to give that opinion less- than-controlling weight 

or even reject it, so long as the ALJ clearly explains his reasons and makes a clear 

record. See Horst v. Comm'r of Soc. Sec., 551 F. App'x 41, 45 ( 3d Cir. 2014) 

("[A]n explanation from the ALJ of the reason why probative evidence has been 

rejected is required so that a reviewing court can determine whether the reasons for 

rejection were improper")( quoting Cotter v. Harris, 642, F.2d 700, 706-07 (3d Cir. 

1981)) (internal quotation marks omitted)). An ALJ may not reject medical 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 14 of 25
15

determinations by substituting his own credibility judgment, speculation or lay 

opinion. Plummer, 186 F.3d at 429; Frankenfield v. Bowen, 861 F.2d 405, 408 

(3d Cir. 1988); Morales 225 F.3d at 317-18. 

Here, the ALJ explained that he gave little weight to Dr. Cornell's medical 

source statement and statements in the medical opinion and to the GAF score of 45 

because they were inconsistent with Dr. Cornell's own observations of the patient. 

Tr. 31. In that vein, the ALJ noted that Dr. Cornell’s examination revealed that

Harper was cooperative, his speech was spontaneous, clear, coherent and logical 

and that he was of average intelligence. Id.

However, Harper’s ability to cooperate with a medical examiner in a safe, 

controlled environment does not necessarily contradict Dr. Cornell’s conclusion 

that he suffered from antisocial personality disorder and social anxiety, both of 

which would be exacerbated in most workplace situations. As the United States 

Court of Appeals for the Third Circuit has noted, “[f]or a person . . . who suffers 

from an affective or personality disorder marked by anxiety, the work environment 

is completely different from home or a mental health clinic.” Morales, 225 F.3d at 

319. Thus, observations made during a clinical visit do not necessarily correlate to 

an individual’s ability to function in a work setting. 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 15 of 25
16

Nor do any of the findings cited to by the ALJ contradict Dr. Cornell’s 

conclusion that Harper would have marked difficulties responding to work 

pressures or changes in a work setting. Harper’s ability to speak without difficulty 

and cooperate with Dr. Cornell likewise does not contradict a conclusion that he 

would have difficulties make judgments on simple work-related decisions.

Furthermore, the ALJ failed to consider from that Dr. Cornell's report, that 

Harper was experiencing paranoia, hallucinations, and symptoms of anxiety, 

particularly in social situations. All of these symptoms could contribute to 

difficulty in a work setting, and conceivably contributed to Dr. Cornell’s opinion. 

Dr. Cornell's GAF score of 45, further supports her opinion that Harper suffered 

from severe limitations. The ALJ gave short shrift to this GAF score because it is 

not capable of empirical verification and represents a “personalized one time 

snapshot” assessment of the medical provider.” Tr. 32. Be that as it may, it does 

not contradict the fact that Dr. Cornell was consistent in her belief that Harper 

suffered from severe limitations.

The examination findings that the ALJ believed contradicted Dr. Cornell’s 

medical opinion bear even less weight when applied to Dr. Cornell’s May 2012 

opinion, rendered at a time when she was Harper’s treating physician. Tr. 399-

400. Dr. Cornell’s May 2012 opinion was internally consistent, and was consistent 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 16 of 25
17

with her previous opinion, albeit more detailed and slightly more limiting. Id. Dr. 

Cornell reiterated that Harper had a poor ability to make judgments simple workrelated decisions, but further noted that he would have significant difficulty 

maintaining attendance at work. Id. 

Dr. Cornell’s opinion was supported by Harper’s severe depressive 

symptoms, mood swings, consistent and sustained auditory and visual

hallucinations, as well as Harper’s social anxiety. Tr. 399. This May 2012 opinion 

should have been given more weight as it was rendered after Dr. Cornell began 

treating Harper. However, the ALJ rejected this opinion for the same less than 

adequate reasons provided for rejecting the earlier consultative examination 

opinion. In short, the ALJ failed to provide sufficient reasoning to deny Dr. 

Cornell’s opinion controlling or significant weight. 

Further compounding this error, the ALJ elected to reject all available 

medical opinions in favor of reaching his own lay conclusion regarding Harper’s 

mental limitations. Tr. 31-32. In addition to giving little weight to the treating 

physician opinion of Dr. Cornell, the ALJ concluded that the State Agency 

psychological consultant’s opinion was only entitled to “[s]ome weight” because 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 17 of 25
18

“after seeing and hearing the claimant . . . [the ALJ] finds that the claimant is not 

as limited as the non-examining, non-consulting psychologist has opined.”2

The ALJ's decision to reject the severity of all available medical opinions in 

favor of reaching his own conclusion is nothing more than substituting lay opinion 

for that of an expert’s opinion, behavior that the Third Circuit has repeatedly 

warned against. See, Plummer, 186 F.3d at 429; Bowen, 861 F.2d at 408; Morales,

225 F.3d at 317-18. The principle against an ALJ substituting his or her own lay 

opinion for that of an expert “is especially profound in a case involving a mental 

disability, [where] an ALJ’s personal observations of the claimant ‘carry little 

weight[.]’” Morales, 225 F.3d at 319 (quoting Daring v. Heckler, 727 F.2d 64, 70 

(3d Cir. 1984)). Consequently, the ALJ did not properly evaluate the medical 

opinions presented in this case; remand is necessary for proper consideration of 

these opinions.

 Tr. 32. 

b. The ALJ's adverse credibility determination was improper

Next, Harper argues that the ALJ discounted Harper's credibility and 

improperly found Harper's wife, Michele, to be less than credible.

 2 This Court recognizes that Dr. Vizza’s opinion did not render Harper per se disabled. Tr. 106. However, in order 

for this opinion to support the ALJ’s ultimate conclusion at Step Five, at the very least the ALJ would have been 

required to pose hypothetical questions to the vocational expert that reflected the limitations imposed by Dr. Vizza. 

Given the ALJ’s failure to do so, it cannot be said that Dr. Vizza’s opinion supported the ALJ’s determination.

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 18 of 25
19

The Third Circuit has stated that “[w]e ‘ordinarily defer to an ALJ's 

credibility determination because he or she has the opportunity at a hearing to 

assess a witness's demeanor.’” Coleman v. Comm’r of Soc. Sec., 440 F. App'x 252, 

253 (3d Cir. 2012). “Credibility determinations are the province of the ALJ and 

should only be disturbed on review if not supported by substantial evidence.” 

Pysher v. Apfel, Civ. A. No. 00–1309, 2001 WL 793305, at *3 (E.D.Pa. July 11,

2001) (citing Van Horn v. Schwieker, 717 F.2d 871, 873 (3d Cir. 1983)). When 

evaluating the credibility of the parties involved, the ALJ must indicate which 

evidence he rejects and which he relies upon as a basis for his findings. See 

Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F. 3d 429, 433 (3d Cir. 1999). 

Here, the ALJ determined that Harper is not credible because "after 

reviewing the entire medical evidence of record, the claimant's isolation and 

struggles with activities of daily living are an attempt to bolster a disability claim." 

(R. 32). The ALJ points to comments made by Harper to Dr. Cornell on April 11, 

2012. Harper, at the time, stated that "he was banking on being approved for 

disability benefits, "did not want to think about having to work, and did not want to 

"mess up" his disability claim by working, and “because of his past difficulty 

maintaining employment due to poor coping skills.” Tr. 395. While this statement 

indicates that perhaps Harper did not want to work because he would rather simply 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 19 of 25
20

obtain disability benefits, it also indicates Harper’s unsuccessful past attempts at 

work. Harper could have been asserting that he knew he would be unable to work 

due to his poor coping skills. Unfortunately, it is impossible to know if the ALJ 

gave any consideration to this possibility, and therefore his credibility analysis was 

compromised.

Even if that statement were considered damaging to Harper's credibility, that

statement alone does not alleviate the need for the ALJ to base his decisions on the 

entirety of Harper's medical record. Significantly, the ALJ concluded that Harper’s 

medically determinable impairments could reasonably cause his subjective 

complaints. Tr. 29. As the Third Circuit previously held, “[w]here medical 

evidence does support a claimant’s [subjective complaints], the complaints should 

then be given ‘great weight’ and may not be disregarded unless there exists 

contrary medical evidence.” Mason v. Shalala, 994 F.2d 1058, 1067-68 (3d Cir. 

1993). An ALJ may, in certain circumstance, draw an adverse credibility 

determination based upon medication non-compliance and “conservative” 

treatment. However, in light of the determination that the ALJ improperly rejected 

Dr. Cornell’s medical opinion, the ALJ’s assessment of the medical evidence 

cannot stand, and his credibility determination was not based in whole or in part 

upon contrary medical evidence. Id. at 1068.

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 20 of 25
21

Furthermore, it is not entirely clear that Harper’s medication noncompliance calls his credibility into question as suggested by the ALJ. “[F]ederal 

courts have recognized a mentally ill person’s noncompliance with psychiatric 

medications can be, and usually is, the result of [the] mental impairment [itself] 

and, therefore, neither willful nor without a justifiable excuse.” Pate-Fires v. 

Asture, 564 F.3d 935, 945 (8th Cir. 2009) (internal quotations omitted, alterations 

in original).3

The record shows that Harper was diagnosed with schizoaffective disorder, 

bipolar disorder, depression and anxiety, all of which have persisted. Treatment 

records revealed that Harper complained of racing thoughts, mood liability and

some visual hallucination. Tr. 372, 406-11. Similarly, he has consistently 

complained of non-commanding auditory hallucinations. The record shows that he 

mentions hearing possible voices at various doctor's appointments, and presented 

with a flat, blunted or reduced affect. (Tr. 376-78, 380-81). When viewed as a 

whole, nearly all of the evidence contained in the administrative record supports 

Harper’s complaints.

 3 Additionally, Social Security Rulings mandate that, where an individual has not complied with medications, “a 

determination must also be made as to whether or not failure to follow prescribed treatment is justifiable.” SSR 82-

59. The ALJ must first conclude that medication would be expected “to restore ability to engage in any SGA[.]” Id. 

If the ALJ finds that it would, he or she must then appropriately develop the record to ascertain whether “the 

claimant . . . is justifiably failing to undergo the treatment prescribed.” Id. The ALJ did not do so in this case. 

Given Harper’s statement that his medications “do not help[,]” it may well be that the medications would not restore 

Harper’s ability to engage in substantially gainful activity. One remand then, the ALJ must develop the record and 

adequately address this issue.

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 21 of 25
22

Similarly, the ALJ's reasons for finding Harper's wife less than persuasive 

are improper. With regard to Ms. Harper's third party statement and testimony, the 

ALJ stated that Michele Harper was not "medically trained to make exacting 

observations as to dates, frequencies, types and degree of medical signs and 

symptoms . . . the accuracy of the opinion is questionable." Tr. 29. In addition to 

this, the ALJ state that "by virtue of the relationship as wife of the claimant, she 

cannot be considered a disinterested third party witness . . ." Id. The ALJ 

concluded his assessment of Michele Harper's credibility by stating that 

"significant weight cannot be given to her opinions because they were inconsistent 

with the opinions and medical doctors in the case." Id. These observations do not 

constitute a sufficient basis for discrediting Mrs. Harper's testimony and third party 

statement.

As previously noted, the ALJ’s analysis of the relevant medical opinions and 

evidence was fundamentally flawed. As a result, the ALJ’s credibility 

determinations based upon purported inconsistencies with the medical evidence 

were compromised. The ALJ’s conclusion that the statements of Michele Harper 

were contradicted by medical evidence cannot stand.

The remaining reasons provided by the ALJ to reject Ms. Harper’s statement 

are also erroneous. The Commissioner recognizes the relevance of third party 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 22 of 25
23

statements from individuals who know the claimant. See 20 CFR§§ 416.912 and 

416.913 and 416.929; SSR 96-7p and 96-8p. Third party statements support a 

claimant's credibility and help assess the claimant's impairments, symptoms, 

limitations and functioning. Id. Therefore, the ALJ may not reject a third party 

statement simply because the third party is not a medical professional. Third party 

statements are usually submitted by individuals who are closest to the claimant.

See, 20 C.F.R. § 416.913 (other sources include “spouses, parents and other 

caregivers, siblings, other relatives, friends, neighbors, and clergy.”). "If an ALJ 

could reject third part statements merely because that individual has some 

motivation to support the claimant's case, it would defeat the entire purpose of 

submitting third party statements and would run contrary to the Commissioner's 

express rulings." Maellaro v. Colvin, No. 3:12-CV-01560, 2014 WL 2770717, at 

*12 (M.D. Pa. June 18, 2014)( Mariani, J.). See also, SSR 96–7p (“the adjudicator 

must consider the entire case record, including ... information provided by ... other 

persons.”)

While the ALJ's credibility determinations are ordinarily accorded 

deference, here the ALJ's determination lacked evidentiary support and was 

contrary to the Commissioner's regulations. The medical record is consistent with

Michele Harper's description of her husband's symptoms. She testified that her 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 23 of 25
24

husband heard voices and was acting paranoid. She stated that it was a task to get

her husband outside. Tr. 58. If there was anyone walking behind him, he would 

run across the street or "spaz out" if anyone got too close to him. She explained 

that by "spazzing out", Harper would become verbally aggressive and yell at 

people. Id. She indicated that, as a result, she only takes Harper outside in the 

early morning or late hours to help keep him calm. Id. 

Her testimony is consistent with Dr. Cornell's assessment of Harper and the 

observations of other clinicians. The ALJ did not give legally sufficient reasons in 

support of his findings that Mrs. Harper's testimony was not entirely credible. 

c. Vocational Expert’s Assessment 

The final challenge is to the ALJ’s hypothetical question posed to the 

vocational expert. Harper contends that the ALJ omitted the limitations assessed 

by Dr. Cornell. An ALJ's hypothetical question to a vocational expert must 

accurately reflect all of the claimant's individual impairments that are supported by 

the record. See Chrupcala v. Heckler, 829 F. 2d 1269, 1276 (3d Cir. 1987); 

Podedworny v. Harris, 745 F.2d 210, 218 ( 3d cir. 1984). As previously indicated, 

the ALJ's analysis of the relevant medical opinions and evidence was improper and 

as a result, rendered his hypothetical question inaccurate.

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 24 of 25
25

IV. CONCLUSION

A review of the administrative record reveals that the decision of the ALJ is 

not supported by substantial evidence. Accordingly, the Court will not adopt the 

Report and Recommendation of the Magistrate Judge. The decision of the ALJ is 

vacated, and this case is remanded for further proceedings. An appropriate Order 

will be entered.

BY THE COURT: 

/s Matthew W. Brann

United States District Judge

Matthew W. Brann 

Case 4:13-cv-02811-MWB Document 23 Filed 03/24/15 Page 25 of 25