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August 17, 1984

Joseph BENEDICT, Plaintiff,
Margaret HECKLER, Secretary of the Department of Health and Human Services, Defendant.

The opinion of the court was delivered by: WEXLER


WEXLER, District Judge:

 This is an action brought pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to review a final determination of the Secretary of Health and Human Services (Secretary) denying plaintiff's application for disability insurance and Supplemental Security Income (SSI). The parties cross-move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

 Plaintiff applied for benefits on January 18, 1982. A hearing was held by an Administrative Law Judge (ALJ) on March 16, 1983, at which time plaintiff changed his alleged date of disability from October 25, 1980 to March 12, 1981. On April 30, 1983, the ALJ denied plaintiff's application on the grounds that plaintiff refused, without justification, to follow prescribed treatment that would substantially improve his condition. 20 C.F.R. Section 404.1530. This determination became the final decision of the Secretary when approved by the Appeals Council on August 3, 1983.


 Plaintiff, Joseph Benedict, is a thirty-two year old veteran with a high school education. In 1972, he was drafted into the U.S. Army and served nine months before receiving an honorable discharge. Subsequently plaintiff held a variety of jobs including bakery worker, auto mechanic and security guard until October 1980. During this period, plaintiff drank heavily, often one case of beer each day. Plaintiff still continues to drink heavily on occasion. On January 5, 1981, plaintiff was admitted to the Veterans Administration Hospital (VA) complaining of alcohol dependence, antisocial behavior and violent outbursts. He also complained of severe headaches, perhaps caused by a nasal condition for which he later underwent surgery. Plaintiff was given psychotherapy and treated with Mellaril. He was discharged on February 6, 1981, but readmitted four days later. He was released shortly thereafter but continued outpatient treatment that included taking Dalmane and Serax, which are mild tranquilizers and antidepressants. On March 10, 1981, Mr. Benedict was given a renewal prescription for Serax. The VA hospital pharmacy mistakenly filled the prescription with Stelazine, a very potent antipsychotic drug.

 On March 12, 1981, plaintiff reported to the VA for a working training session, having ingested 30 mg. of Stelazine thinking it was Serax. Unsurprisingly, plaintiff went into severe convulsions and suffered an acute dystonic reaction, including a severe arching of the back. Plaintiff was admitted to the hospital and treated, then released the following day. After release, plaintiff developed insomnia, caused by a fear of sleep resulting from the Stelazine reaction, and was placed on tranquilizers. He also suffered a painful back injury from the severe arching during the drug reaction. Plaintiff continued to drink heavily.

 From September 1982 through the hearing date plaintiff was seen by a number of doctors and psychiatrists. Physically, he was found to have a slight limp, limited hyperextension of the neck, lumbosacral sprain and some degree of arthritis. Mr. Benedict walks with the aid of a cane and, according to the report of Dr. Amini, a consulting physician, can sit for only two hours at a time and lift and carry only five to ten pounds. Plaintiff's alcoholism appears to be chronic. In addition, plaintiff was rather obese, having gained sixty pounds in a six month span attributable perhaps to prescribed medication, a sedentary lifestyle or alcohol use. Plaintiff discounted food as a reason, as he is a strict vegetarian.

 Four psychiatrists examined plaintiff at different times during this period. The first was Dr. Joseph who saw plaintiff once on September 10, 1982. At this point, plaintiff was on no medication other than Valium, and refused additional treatment. Dr. Joseph found plaintiff to be suffering from overt paranoid schizophrenia and alcoholism. Concentration and insight were poor. Dr. Joseph said plaintiff's diagnosis was poor because he was unwilling to take other medication. Plaintiff was next seen by Dr. Moon on December 4, 1982. His diagnosis was alcohol dependence and intermittent explosive disorder. Plaintiff continued to refuse drug treatment. On December 22, 1982 plaintiff was seen for the last time by his then treating psychiatrist, Dr. Glenn. His diagnosis was borderline personality disorder characterized by restlessness, childishness, poor judgment, antisocial behavior and dependence. In Dr. Glenn's opinion plaintiff was incapable of functioning in a commercial establishment or paid work for the foreseeable future.

 Lastly, the record contains a report of April 4, 1983 from plaintiff's treating psychiatrist, Dr. Wright. He indicated that plaintiff would have moderate to severe difficulty working in areas with more than minimal stress and social interaction, but could perhaps function in simple jobs with minimal social contact. He stated that plaintiff could probably benefit from antipsychotic medication, but refused to take it.


 The Secretary's determination denying disability benefits is conclusive if supported by substantial evidence on the record. Substantial evidence has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). In the present case, the ALJ's decision is comprised of three separate conclusions: First, that treatment was prescribed; second, that treatment would restore plaintiff's ability to work; third, that plaintiff was without justification in refusing this treatment.

 In denying plaintiff disability benefits, the ALJ did not make an explicit finding that plaintiff was disabled; his decision was based solely on the fact that plaintiff refused to take "prescribed" medication. Nevertheless, it appears that inherent in the ALJ's decision is a finding of disability. A reading of 20 C.F.R. Section 404.1530 reveals it is a disqualification for receiving or reason for termination of benefits. It is not dispositive of the underlying disability. When gaps or omissions exist in the ALJ's decision, this Court may fill them in if "the record provides persuasive proof of disability and a remand for futher evidentiary proceedings would serve no purpose." Parker v. Harris, 626 F.2d 225, 235 (2d Cir.1980). All of the psychiatrists who examined plaintiff found him to be suffering from some mental impairment, their disagreement centered solely on the severity of plaintiff's impairment. "The mere fact that several physicians have diagnosed a particular claimant's mental condition differently does not compel a conclusion that the claimant is not suffering from a mental impairment." Rivera v. Schweiker, 560 F. Supp. 1091, 1095 (S.D.N.Y.1982). The regulations explictly state that "the criteria for severity of mental impairment(s) are so constructed that a decision can be reached even if there are disagreements regarding diagnosis." Appendix I, Section 12.00 A. Moreover, the applicant for disability need not be a total basket case. DeLeon v. Secretary of Health and Human Services, 734 F.2d 930 at 935 (2d Cir.1984). In the instant case, even the least severe diagnosis, that is, borderline personality disorder, is listed under Appendix I, Section 12.04, which states in relevant part:

 12.04 Functional nonpsychotic disorders (psychophysiologic, neurotic, or personality disorders; addictive dependence on ...

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