AL MURAIHEG v. COLVIN

Filing 16

ORDER denying 9 Plaintiff's Motion for Summary Judgment and granting 13 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 9/18/2017. (dpo)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

NAHEDA FALEH AL MURAIHEG,

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) Civil Action No. 16-75-E
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Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

ORDER

AND NOW, this 18th day of September, 2017, upon consideration of the parties=
cross-motions for summary judgment, the Court, upon review of the Commissioner of Social
Security=s final decision denying Plaintiff=s claim for Supplemental Security Income (“SSI”)
benefits under Subchapter XVI of the Social Security Act, 42 U.S.C. § 1381, et seq., finds that
the Commissioner=s findings are supported by substantial evidence and, accordingly, affirms.
See 42 U.S.C. ' 405(g); Jesurum v. Secretary of U.S. Department of Health & Human Services,
48 F.3d 114, 117 (3d Cir. 1995); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert.
denied sub nom., 507 U.S. 924 (1993); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
See also Berry v. Sullivan, 738 F. Supp. 942, 944 (W.D. Pa. 1990) (if supported by substantial
evidence, the Commissioner=s decision must be affirmed, as a federal court may neither reweigh

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the evidence, nor reverse, merely because it would have decided the claim differently) (citing
Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).1

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The Court finds no merit in Plaintiff’s arguments that the Administrative Law Judge
(“ALJ”) erred in finding him to be not disabled, and finds that substantial evidence supports the
ALJ’s decision.
Plaintiff’s primary argument is that the ALJ erred by affording insufficient weight to the
opinion of Plaintiff’s treating psychologist, Justin Aleia, D.O., and too much to those of the
consultative examiner, Glenn Bailey, Ph.D., and of the state agency reviewing agent, Phyllis
Brentzel, Psy.D. It is true, as Plaintiff asserts, that when assessing a claimant’s application for
benefits, the opinion of the claimant’s treating physician generally is to be afforded significant
weight. See Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001); Plummer v. Apfel, 186 F.3d
422, 429 (3d Cir. 1999). In fact, the regulations provide that for claims, such as this one, filed
before March 27, 2017, a treating physician’s opinion is to be given “controlling weight” so long
as the opinion is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and not inconsistent with other substantial evidence in the record. 20 C.F.R. §
416.927(c)(2); Fargnoli, 247 F.3d at 43; Plummer, 186 F.3d at 429. As a result, the ALJ may
reject a treating physician’s opinion outright only on the basis of contradictory medical evidence,
and not on the basis of the ALJ’s own judgment or speculation, although he may afford a treating
physician’s opinion more or less weight depending upon the extent to which supporting
explanations are provided. See Plummer, 186 F.3d at 429.
However, it is also important to remember that:
The ALJ -- not treating or examining physicians or State agency
consultants -- must make the ultimate disability and RFC
determinations. Although treating and examining physician
opinions often deserve more weight than the opinions of doctors
who review records, “[t]he law is clear . . . that the opinion of a
treating physician does not bind the ALJ on the issue of functional
capacity[.]” Brown v. Astrue, 649 F.3d 193, 197 n. 2 (3d
Cir.2011). State agent opinions merit significant consideration as
well.
Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011)(internal citations omitted in
part). Here, the ALJ included in his decision a substantial discussion as to why he gave minimal
weight to Dr. Aleia’s opinion (R. 417), and greater weight to those of the consultative examiner,
provided on May 1, 2013 (R. 309-22), and of the state agency reviewing agent, provided on May
14, 2013 (R. 108-11), and as to how he formulated Plaintiff’s residual functional capacity
(“RFC”). (R. 27-35 ).
Although, in general, “the opinions of a doctor who has never examined a patient have
less probative force as a general matter, than they would have had if the doctor had treated or
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examined him,” Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000)(internal quotations omitted),
where “the opinion of a treating physician conflicts with that of a non-treating, non-examining
physician, the ALJ may choose whom to credit.” Id. at 317. See also Dula v. Barnhardt, 129
Fed. Appx. 715, 718-19 (3d Cir. 2005). The ALJ, of course, “‘cannot reject evidence for no
reason or for the wrong reason,’” Morales, 225 F.3d at 317 (quoting Plummer, 186 F.3d at 429),
and can only give the opinion of a non-treating, non-examining physician weight insofar as it is
supported by evidence in the case record, considering such factors as the supportability of the
opinion in the evidence, the consistency of the opinion with the record as a whole, including
other medical opinions, and any explanation provided for the opinion. See SSR 96-6p, 1996 WL
374180 (S.S.A.), at *2 (July 2, 1996). In certain cases, it would not be unwarranted to give more
weight to the non-examining professional’s opinion. See Salerno v. Comm’r of Soc. Sec., 152
Fed. Appx. 208 (3d Cir. 2005) (affirming an ALJ’s decision to credit the opinion of the nonexamining state agency reviewing psychologist because his opinion was more supported by the
record than the opinions of the treating physician and the consultative examiner).
Plaintiff challenges the relative weight given by the ALJ to the opinions in the record on
various grounds. He asserts, for instance, that the non-treating reviewers’ opinions were given
more than a year prior to the opinion of Dr. Aleia and without the benefit of treatment notes from
Stairways Behavioral Health that post-date those opinions. Generally speaking, there is no
specific limit on how much time may pass between a medical professional’s report or opinion
and the ALJ’s decision relying on it. See Chandler, 667 F.3d at 361. Indeed, “there is always a
time lapse between the consultant’s report and the ALJ hearing and decision.” Id. However,
Plaintiff argues that the fact that the medical evidence post-dating the opinions of Drs. Bailey
and Brentzel, but to which Dr. Aleia did have access, demonstrates that the time gap in this case
is relevant. Indeed, where there is a substantial amount of new evidence between the date on
which an opinion upon which an ALJ relies and the date on which the ALJ renders his or her
decision, remand may be warranted. See Cadillac v. Barnhart, 84 Fed. Appx. 163, 168-69 (3d
Cir. 2003); Grimes v. Colvin, 2016 WL 246963, at *2 (W.D. Pa. Jan. 21, 2016). However, Dr.
Aleia himself in no way suggested that his opinion was meant to account for any changes in
Plaintiff’s condition between May of 2013, when the non-treating reviewers offered their
opinions, and October 17, 2014, when he offered his own. (R. 417). Moreover, while there is in
fact evidence to which the non-treating reviewers had no access, the ALJ was aware of and
considered and discussed said evidence in weighing the opinions.
Plaintiff further argues that the record does not support Dr. Bailey’s findings of various
moderate restrictions, adopted by Dr. Brentzel and the ALJ, because his own report is
inconsistent with such a finding. He specifically argues, inter alia, that Dr. Bailey’s assessment
of a Global Assessment of Functioning (“GAF”) score of 45 is inconsistent with the mostly
moderate limitations to which he opined. However, GAF scores do not directly correlate to a
determination of whether an individual is or is not disabled under the Act:
The GAF scale, which is described in the DSM-III-R (and the
DSM-IV), is the scale used in the multiaxial evaluation system
endorsed by the American Psychiatric Association. It does not
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have a direct correlation to the severity requirements in our mental
disorders listings.
65 Fed. Reg. 50746, 50764-65. While under certain circumstances a GAF score can be
considered evidence of disability, standing alone, a GAF score does not evidence an impairment
seriously interfering with a claimant’s ability to work. See Lopez v. Barnhart, 78 Fed. Appx.
675, 678 (10th Cir. 2003). GAF scores may indicate problems that do not necessarily relate to
the ability to hold a job. See id.; Zachary v. Barnhart, 94 Fed. Appx. 817, 819 (10th Cir. 2004);
Wilkins v. Barnhart, 69 Fed. Appx. 775, 780 (7th Cir. 2003); Howard v. Comm’r of Soc. Sec.,
276 F.3d 235, 241 (6th Cir. 2002); Power v. Astrue, 2009 WL 578478, at *8 (W.D. Pa. Mar. 5,
2009). For instance, a GAF score between 41 and 50, such as the one at issue here, reflects
“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).” American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders (4th ed., Text Rev. 2000)(emphasis added). Accordingly, the mere fact that a treating
mental health care provider assigned certain GAF scores would not necessarily indicate that
Plaintiff is disabled. Dr. Bailey’s report and findings, of course, contain far more than a GAF
score, and nothing indicates that these findings are inconsistent with that score as assigned by Dr.
Bailey.
To the extent that Plaintiff invites the Court to adopt his own interpretation of Dr.
Bailey’s notes in evaluating his opinion, the Court again emphasizes that, if supported by
substantial evidence, the Commissioner=s decision must be affirmed, as a federal court may
neither reweigh the evidence, nor reverse, merely because it would have decided the claim
differently. See Berry, 738 F. Supp. at 944 (citing Cotter, 642 F.2d at 705). The record here
establishes that the ALJ properly considered the evidence and that the evidence was sufficient to
support the significant weight given to the opinions of the consultative examiner and the state
reviewing agent.
Regardless, the ALJ’s decision to afford minimal weight to Dr. Aleia’s opinion relied on
more than the non-treating reviewers’ opinions, relying also on the objective medical evidence,
including Dr. Aleia’s own treatment notes, Dr. Aleia’s limited history with Plaintiff, and
Plaintiff’s inconsistent and conservative treatment record, all of which the ALJ discussed at
significant length. Plaintiff claims that the ALJ mischaracterized Dr. Aleia’s treatment notes in
implying that they documented objective findings “essentially within normal limits.” (R. 34).
While, again, the Court cannot reweigh the evidence, in any event, the record supports the ALJ’s
statement that the objective findings were essentially within normal limits. Although the notes
obviously contain Plaintiff’s complaints and various diagnostic findings, numerous findings in
Dr. Aleia’s August 26, 2014 and October 10, 2014 treatment notes indicate behavior and
conditions within normal limits. (R. 349-50, 412-14). The Court finds that substantial evidence
supports the ALJ’s treatment of these records.
Likewise, it was appropriate for the ALJ to consider the limited treatment history
between Plaintiff and Dr. Aleia, and whether Dr. Aleia had any specialization or expertise in
occupational medicine, as these are factors ALJs must take into account when weighing medical
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opinion evidence. See 20 C.F.R. 416.927(c)(2)(i) and (c)(5). The Court further notes that while,
according to Plaintiff, “Dr. Aleia prepared a medical source statement which detailed plaintiff’s
functional limitations” (Doc. No. 10 at 15), it would be more accurate to say that he answered
four yes-or-no questions on a form prepared by counsel with no supporting explanation. Given
the bare-bones nature of Dr. Aleia’s opinion, the ALJ reasonably questioned the nature of his
relationship with Plaintiff and his experience in rendering these types of occupational opinions.
In sum, the record indicates that the ALJ properly weighed and considered all of the record
evidence in considering the medical opinions and in formulating the RFC, and substantial
evidence supports his findings.
Plaintiff also argues that the ALJ improperly determined the credibility of his testimony
and that of his girlfriend, Anwar Al Shirify. He attempts to do so, though, by singling out each
factor considered by the ALJ and arguing that the factor alone would not permit the ALJ to
disregard the testimony. However, the ALJ did not rely on any one factor but rather considered a
variety of factors in evaluating the testimonial evidence. For instance, when determining the
credibility of Plaintiff’s subjective complaints, he considered Plaintiff’s truncated work history.
(R. 33). While this factor alone may not have been determinative as to credibility, it is certainly
a proper factor for consideration. See Ford v. Barnhart, 57 Fed. Appx. 984, 988 (3d Cir. 2003).
Likewise, the ALJ properly considered Plaintiff’s infrequent and conservative treatment history,
see Garrett v. Comm’r of Soc. Sec., 274 Fed. Appx. 159, 164 (3d Cir. 2008); SSR 96-7p, 1996
WL 374186 (S.S.A.), at *7 (July 2, 1996), SSR 16-3p, 2016 WL 1119029 (S.S.A.), at *7 (Mar.
16, 2016), but he did not base his credibility determination on that factor alone.
Moreover, an ALJ may consider a claimant’s activities of daily living in evaluating the
claimant’s credibility regarding his or her symptoms. See Garrett, 274 Fed. Appx. at 164 (citing
Burns v. Barnhart, 312 F.3d 113, 129-30 (3d Cir. 2002)); 20 C.F.R. § 416.929(c)(3)(i). Plaintiff
takes issue, nonetheless, with the ALJ’s consideration of a trip he took to see family in Iraq in
2014. However, not only did the ALJ emphasize that such a trip was not necessarily inconsistent
with a disability, he also explained that the trip in question came during a period of nearly a year
during which he sought mental health treatment only once, purportedly because he refused to go
anywhere based on feelings of uselessness. (R. 27-28, 30, 33, 60). The ALJ also noted that
Plaintiff, at his hearing on November 4, 2014, actually denied the trip the record shows he had
taken just a few months earlier. (R. 28, 58-59, 439). Plaintiff, of course, has offered alternative
explanations as to why these factors do not reflect poorly on his credibility, but the ALJ
obviously rejected his explanations. As noted, none of these factors were cited as uniquely
precluding Plaintiff from being disabled; rather, they were part of the ALJ’s overall credibility
analysis, as they should have been. As a general matter, an ALJ’s credibility determination is
afforded significant deference. See Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). Here,
there was clearly sufficient evidence to support the ALJ’s findings regarding the veracity of
Plaintiff’s subjective complaints.
Plaintiff’s argument regarding the credibility findings as to his girlfriend’s testimony
suffers from the same deficiency of trying to single out factors that were considered merely as
part of an overall analysis. While Ms. Al Shirify’s pecuniary interest in the matter may not have
in itself permitted her testimony to be discounted, here it was merely one of several factors
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Therefore, IT IS HEREBY ORDERED that Plaintiff=s Motion for Summary
Judgment (document No. 9) is DENIED and Defendant=s Motion for Summary Judgment
(document No. 13) is GRANTED.

s/Alan N. Bloch
United States District Judge
ecf:

Counsel of record

considered by the ALJ. See Hyson v. Comm’r of Soc. Sec., 2013 WL 2456378, at *20 (N.D.
Ohio June 5, 2013)); Timbrook v. Colvin, 2015 WL 331799, at *14 (E.D. Mo. Jan. 23, 2015).
Similarly, while Plaintiff complains that the ALJ relied on Ms. Al Shirify’s lack of medical
training in weighing her testimony, such a factor is not improper, see SSR 06-3p, 2006 WL
2329939 (S.S.A.), at *4 (Aug. 9, 2006), and again was just one of the factors he considered.
Indeed, the ALJ expressly indicated that the “most important[]” (R. 35) element of his evaluation
of Ms. Al Shirify’s testimony was that it was not supported by the clinical and diagnostic
medical evidence, which he discussed at length in his decision, and which is undeniably a proper
factor. See S.S.R. 06-3p at *4. As the Court has discussed, substantial evidence supports the
ALJ’s findings regarding the objective medical evidence.
Accordingly, for all of the reasons stated herein, the Court affirms the ALJ’s decision.
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