                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-19-2003

Knox v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket 02-3208




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                                                                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                        No. 02-3208




                                 KAREN MARIE KNOX,
                                                            Appellant

                                             v.

                               JO ANNE B. BARNHART,
                              Commissioner of Social Security




                       On Appeal from the United States District Court
                           for the Eastern District of Pennsylvania
                                (D.C. Civil No. 01-cv-03467)
                         District Judge: Hon. Ronald L. Buckwalter


                         Submitted Under Third Circuit LAR 34.1(a)
                                     March 10, 2003

            Before: SLOVITER, NYGAARD, and ALARCÓN*, Circuit Judges

                                  (Filed: March 19, 2003)




                               OPINION OF THE COURT




*   Hon. Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the Ninth
    Circuit, sitting by designation.
SLOVITER, Circuit Judge.

        Appellant Karen Marie Knox appeals from the decision of the District Court

granting summary judgment to the Commissioner of Social Security who denied Knox’s

claim for supplemental security income (SSI) under the Social Security Act. We will

remand for further proceedings.

                                                  I.

                                  Facts and Procedural History

        As the parties are familiar with the facts and the procedural history, we will refer

only to those necessary for our decision.

                                                       A.

        Knox filed a claim for supplemental security income on September 30, 1997,

alleging disability beginning May 1, 1997, due to depression, an anxiety disorder, panic

attacks and agoraphobia. Her application was denied initially and again on reconsideration.

Knox appealed the denial, and the administrative law judge (ALJ) held hearings on June 9,

1999 and September 24, 1999, and found that Knox was not entitled to benefits.

                                                       B.

        Knox was born on November 13, 1957 and has a tenth grade education level. Her

employment record includes work as a cashier at a Rite-Aid pharmacy four days a week for

several months during 1997 and 1998, as well as work as a housekeeper, babysitter, and in

hairdressing. She lives with her ex-husband and children, does some light household

chores, including cooking and cleaning, and goes out in public. Her medical records begin

                                                       2
with an involuntary mental health commitment on November 6, 1992, based on allegations

of homicidal and suicidal conduct. Since this first admittance, Knox has been hospitalized

on numerous occasions. She has been hospitalized following a suicide attempt and for

intoxication, and she has gone to the Emergency Room when she had feelings of anxiety.

She has also been admitted into both inpatient and outpatient mental health treatment

centers for anxiety, depression, and panic attacks, and has attended detoxification centers.

She has a twenty-year history of alcohol abuse.

        Knox has been diagnosed with depression, panic disorder, acute alcoholic hepatitis,

major depression, anxiety, and a history of alcohol and drug abuse. In fact, physicians at the

numerous centers at which Knox has received treatment have noted incidents of substance

abuse, with numerous physicians prescribing a detoxification program. Treatment notes

from her participation in the Milestones Community Healthcare Drug and Alcohol Program

partial hospitalization program indicate that Knox frequently failed to attend meetings of

Alcoholism Anonymous and had problems with her attendance in the partial program. Dr.

Giannasio, her treating physician, diagnosed her with major depression, psychosis, and

continuous alcohol dependence.

        Dr. Giannasio completed interrogatories in which he answered that Knox’s

psychoses would not change even without the influence of drugs and alcohol. At the

hearing before the ALJ, a non-treating medical expert, Dr. Cohen, testified that Knox’s

primary problem was a substance addiction disorder, but he was unable to say if there was

“an affective disorder going on.” Transcript at 405. He also stated that while alcoholism

                                                    3
and drug abuse can cause depression, persons suffering from depression and other

disorders may self-medicate with alcohol. Transcript at 407-08.

        The ALJ issued an opinion on January 24, 2000, finding that although Knox suffers

from a severe impairment, she is not disabled because substance abuse is a factor material

to the determination of her disability. This decision was adopted as the final decision of

the Commissioner. Knox filed suit seeking judicial review of the final decision of the

Commissioner under 42 U.S.C. § 405(g). The District Court granted the Commissioner’s

motion for summary judgment for the closed period at issue,

from September 30, 1997 through July 10, 2001. Knox had filed a new claim for SSI on

July 11, 2001, for which Knox has been determined to be qualified. Knox appeals from the

order granting summary judgment for the Commissioner for the earlier period. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

                                                   II.

                                               Discussion

        To prove disability under the Social Security Act, Knox must demonstrate that there

is a “medically determinable basis for an impairment” that prevents her from engaging in

“substantial gainful activity.” Stunkard v. Sec. of Health and Human Servs., 841 F.2d 57, 59

(3d Cir. 1988); see also 20 C.F.R. § 404.1505(a) (providing basic definition of disability

under SSA). A claimant is not considered disabled “if alcoholism or drug addiction would

(but for this subparagraph) be a contributing factor material to the Commissioner’s

determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C) (Supp. 2002).

                                                    4
        Our review of the Commissioner’s final decision is limited to determining whether

it is supported by substantial evidence. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.

1999). Substantial evidence “‘does not mean a large or significant amount of evidence, but

rather such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Id. (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). The

Commissioner does not contest Knox’s challenge that the ALJ’s decision was not

supported by substantial evidence in the record. Rather, the Commissioner requests

remand to the ALJ because of conflicting evidence in the record and to more fully develop

the record.

        Knox argues that instead of remanding we should reverse the ALJ’s denial of her SSI

application. However, the record does not contain substantial evidence to support a finding

that Knox suffers from a disability independent of her substance abuse. The most

significant evidence Knox produced, the testimony of her treating physician, Dr. Giannasio,

does not provide a sufficient evidentiary basis to support such a determination. Although

the ALJ should give great weight to the opinions of a treating physician, if the opinion of

the treating physician and the non-treating physician conflict, the ALJ may “choose whom

to credit but ‘cannot reject evidence for no reason or for the wrong reason.’” Morales v.

Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citation omitted). The ALJ may even choose to

reject the treating physician’s opinion on the basis of contradictory medical evidence. Id.

        The ALJ rejected Dr. Giannasio’s testimony based on the testimony of Dr. Cohen, a

non-treating medical expert, and on other evidence in the record. First, the ALJ found that

                                                     5
the questions asked of Dr. Giannasio were leading. Second, Dr. Giannasio failed to provide

support for his conclusions. Third, the responses he gave were inconsistent with his own

contemporaneous findings. Finally, Dr. Giannasio’s opinions were based on a lack of full

disclosure by Knox about her history of drug and alcohol abuse.

        Furthermore, the record is not fully developed. Presently, the only expert evidence

that the ALJ cited in support of the conclusion that there would be no psychiatric

impairment of any kind “but for” active substance abuse, is that of the non-examining

medical expert, Dr. Cohen. The Commissioner notes that Dr. Cohen offered conflicting

testimony about whether Knox would suffer from these impairments if she stopped abusing

drugs and alcohol. At one point in the hearing, Dr. Cohen testified that substance addiction

was Knox’s sole impairment. Transcript at 405, 407. Later, however, he stated that he did

not know and “can’t even say” if Knox suffered from depression independent of her drug

and alcohol dependence. Transcript at 405, 407-08.

        This case is unlike our decision in Podedworny v. Harris, 745 F.2d 210

(3d Cir. 1984), where we reversed an adverse disability determination without requiring

additional hearings because there had already been two proceedings before the ALJ and we

concluded that “it would be virtually impossible to adduce new. . .evidence that would be

necessary to support a finding that [the appellant] is not disabled.” 745 F.2d at 223. In the

present case, as the Commissioner agrees, additional expert testimony, as well as other

supplemental evidence, is necessary to develop a record upon which Knox’s disability

application can be analyzed. Allowing further evidence to be adduced will enable the ALJ,

                                                    6
the designated fact-finder, to make a finding whether Knox’s impairment was induced by

substance abuse.

        Knox asserts that an accurate assessment of her condition can only be made by an

examining or treating physician, and that additional testimony from a non-treating medical

expert will be unclear and uncertain. Admittedly, Dr. Cohen stated he could do little more

than “guess” as to the effects of Knox’s substance abuse upon her potential underlying

mental impairments. Transcript at 368. Nonetheless, remand is still appropriate.

        The regulations provide that if the Commissioner finds the evidence provided by the

claimant to be inadequate in determining whether the claimant is disabled, the

Commissioner can take a variety of steps to augment the medical evidence, 20 C.F.R. §

416.912(e), including affirmatively seeking clarification from the treating physician, 20

C.F.R. § 416.912(e)(1), and/or calling another expert, 20 C.F.R. § 416.927(f)(2)(iii). A

remand will provide the ALJ and the Commissioner with the opportunity to seek further

clarification and to allay some of the concerns with Dr. Giannasio’s prior testimony.

        Although Knox has already received a favorable decision for the period beyond that

at issue here, from September 30, 1997 through July 10, 2001, that does not signify that

Knox was disabled for the earlier period. Only a new determination based on substantial

evidence in a supplemented record can so determine.

                                                    III.

                                                Conclusion

        For the reasons set forth, we will vacate the District Court’s order granting summary

                                                     7
judgment for the Commissioner and will remand to the District Court with directions to

remand to the Commissioner for further proceedings.




                                                   8
_______________________

TO THE CLERK:

            Please file the foregoing opinion


              /s/ Dolores K. Sloviter
                    Circuit Judge




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