GHRIST v. ASTRUE

Filing 11

MEMORANDUM AND ORDER. Plaintiff's Motion for Summary Judgment (ECF No. 7 ) is DENIED, Defendant's Motion for Summary Judgment (ECF No. 9 ) is GRANTED, and the decision of the ALJ is AFFIRMED pursuant to the fourth sentence of 42 U.S.C. 405(g). Signed by Judge Cathy Bissoon on 9/18/13. (dcd) Modified on 9/18/13 to correct Order's date of entry. (dcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MARK A. GHRIST,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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Civil Action No. 12-1210
Judge Cathy Bissoon

MEMORANDUM AND ORDER
I. MEMORANDUM
For the reasons that follow, Plaintiff’s Motion for Summary Judgment (ECF No. 7)
will be denied, and Defendant’s Motion for Summary Judgment (ECF No. 9) will be granted.
Mark A. Ghrist (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the final determination of the Commissioner of Social Security (“Defendant”
or “Commissioner”) denying his application for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act,
42 U.S.C. §§ 401 – 433, 1381 – 1383f (“Act”). An Administrative Law Judge (“ALJ”) denied
benefits to Plaintiff on September 14, 2010, following an administrative hearing. (R. at 7 – 61).1
Subsequently, a request for review by the Appeals Council was denied, and Plaintiff filed the
present Complaint in this Court on August 24, 2012. (R. at 1 – 6; ECF No. 2). Defendant filed
an Answer on October 25, 2012. (ECF No. 5). Cross motions for summary judgment followed.
(ECF Nos. 7, 9).

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Citations to ECF Nos. 6 – 6-10, the Record, hereinafter, “R. at __.”

The ALJ determined that Plaintiff had medically determinable severe impairments,
namely, bipolar disorder, attention deficit hyperactivity disorder (“ADHD”), generalized anxiety
disorder with panic attacks, depression, obsessive-compulsive personality traits and history of
opioid dependence. (R. at 12). However, he had the functional capacity to perform a full range
of work at all exertional levels, but with the following non-exertional limitations: only simple,
routine, repetitive work; only occasional interaction with the general public, co-workers
and supervisors; only 1-2 step tasks; little independent decision-making; and working primarily
with objects and not people. (R. at 16). Consistent with the testimony of the vocational expert,
the ALJ found that Plaintiff thereby qualified for a significant number of jobs in existence in the
national economy. (R. at 20 – 21).
Plaintiff objects to the decision of the ALJ, arguing that she erred in failing to give
appropriate weight to the findings of Plaintiff’s treating medical sources in favor of the opinions
of state agency and consultative examiners, and in failing to give adequate consideration to
Plaintiff’s low global assessment of functioning (“GAF”) scores. (ECF No. 8 at 1 – 8).2
Defendant counters that the decision of the ALJ was properly supported by substantial evidence
from the record, and should be affirmed. (ECF No. 10 at 8 – 17). The Court agrees with
Defendant.
In order to qualify for DIB or SSI, a claimant must prove to the Commissioner that he is
incapable of engaging in substantial gainful activity. 42 U.S.C. §423(d)(1)(A); Brewster v.
Heckler, 786 F.2d 581, 583 (3d Cir. 1986). When reviewing a claim, the Commissioner must

The Global Assessment of Functioning Scale (“GAF”) assesses an individual’s psychological,
social and occupational functioning with a score of 1 being the lowest and a score of 100 being
the highest. The GAF score considers “psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.” American Psychiatric Association: Diagnostic
and Statistical Manual of Mental Disorders (DSM-IV-TR) 34 (4th ed. 2000).
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utilize a five-step sequential analysis to evaluate whether a claimant has met this requirement.
20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24 – 25 (2003).
Assuming a claimant meets his burden at Steps 1 through 4, Step 5 places a burden upon the
Commissioner to show that a particular claimant is able to perform substantial gainful activity in
jobs available in the national economy. Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986).
Additionally, the facts relevant to a particular case are limited to those records that were
available to the ALJ when rendering his decision. All other records newly submitted to the
Appeals Council or Court will not be considered,3 and will not inform the decision of the court.
See Matthews v. Apfel, 239 F. 3d 589, 592, 594 – 95 (3d Cir. 2001).4
Plaintiff first argues that the ALJ did not give sufficient consideration to the findings of
therapist Kerry R. Reed, M.A. – a medical source having treated Plaintiff on approximately ten
occasions – indicating that Plaintiff could not get along with others, could not receive instruction
and was severely depressed. (ECF No. 8 at 1 – 3). Mr. Reed also assigned a GAF score of 40 to
Plaintiff. (ECF No. 8 at 1 – 2).5 Plaintiff was counseled by Mr. Reed between March 2010

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Exhibits 12E, 13E, 13F, 14F, 15F; R. at 1 – 6, 221 – 24, 430 – 45.
The Appeals Council may decline review of a claimant’s case when the ALJ’s decision is not
at odds with the weight of the evidence on record. Matthews, 239 F. 3d at 592. In such a case,
a district court can only review that evidence upon which the ALJ based his or her decision.
Id. at 594 – 95. As a result, new evidence presented by a claimant to the Appeals Council,
but not reviewed, is not within the purview of a district court when judging whether substantial
evidence supported an ALJ’s determination. Id. Furthermore, a district court lacks the authority
to review the Appeals Council’s decision to deny review of the ALJ’s decision. Id. at 594.
Here, Plaintiff failed to make the required showing under Szubak v. Sec’y of Health and Human
Serv., 745 F. 2d 831 (3d Cir. 1984), for remand to reconsider the case in light of newly submitted
evidence not considered by the ALJ when making his decision. Therefore, the case will not be
remanded for this purpose, and Exhibits 12E, 13E, 13F, 14F, and 15F (R. at 221 – 24, 430 – 45)
will not be addressed.
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An individual with a GAF score of 31 – 40 may have “[s]ome impairment in reality testing or
communication” or “major impairment in several areas, such as work or school, family relations,
judgment, thinking or mood.” American Psychiatric Association: Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV-TR) 34 (4th ed. 2000).
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and May 2010. (R. at 310 – 28). In his initial evaluation of Plaintiff, Mr. Reed indicated that
Plaintiff had ADHD, bipolar disorder, NOS and generalized anxiety disorder. (R. at 328).
He indicated that Plaintiff suffered poor judgment, insight, and attention/concentration and very
poor memory and impulse control. (R. at 328). Plaintiff reported that he saw his children
regularly, had a good relationship with his siblings, and an “ok” relationship with his parents.
(R. at 324 – 25).
The ALJ enumerated a variety of reasons why he did not accord the more severe findings
of Mr. Reed significant weight. He first cited the psychiatric evaluation of treating psychiatrist
Michael T. Malayil, M.D., in December 2008, wherein Plaintiff was diagnosed with bipolar
affective disorder, and was assigned a GAF score of 70. (R. at 13 – 14, 18, 293 – 94).6
Dr. Malayil noted that Plaintiff claimed to have lost his former business and employment due to
drug abuse and unspecified emotional issues. (R. at 293). Dr. Malayil indicated that Plaintiff
was in treatment for his drug abuse issues, was sober, had periods of depression, and had labile
affect with no suicidal ideation or hallucinations. (R. at 293). Plaintiff had some insight.
(R. at 293). Dr. Malayil managed Plaintiff’s medication regimen through May 2009. (R. at 296
– 99). Plaintiff complained of difficulties with memory and anxiety, but did not comply with
Dr. Malayil’s treatment recommendations. (R. at 196 – 99). Additionally, therapist Diane
Kerrigan, M.S., L.P.C., noted that Plaintiff attended only fourteen therapy sessions with her,
one psychiatric evaluation, and three medication checks with Dr. Malayil. (R. at 296).
Plaintiff was discharged from Dr. Malayil and Ms. Kerrigan’s care because he missed twentyseven scheduled treatment sessions. (R. at 296).
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An individual with a GAF score of 61 – 70 may have “[s]ome mild symptoms” or “some
difficulty in social, occupational, or school functioning, but generally functioning pretty well”
and “has some meaningful interpersonal relationships.” American Psychiatric Association:
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) 34 (4th ed. 2000).
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The ALJ also looked to the findings of consultative examiner Lanny Detore, Ed. D.
(R. at 13 – 15, 17 – 18). He examined Plaintiff on November 20, 2008, and concluded that
Plaintiff suffered from mood disorder, NOS, anxiety disorder and obsessive-compulsive
personality features. (R. at 269). Plaintiff informed Dr. Detore that he had regular contact with
his children and engaged in activities of daily living without issue. (R. at 268). Plaintiff reported
avoiding public places and people due to panic and anxiety. (R. at 268). He also admitted to a
lengthy history of drug abuse. (R. at 268 – 69). However, Plaintiff’s anxiety was reduced by
prescription medication. (R. at 270). He did not neglect his hygiene, he was cooperative and
pleasant, and he was capable of managing his own benefits. (R. at 269 – 70). Dr. Detore found
Plaintiff would experience no more than moderate functional limitations. (R. at 271 – 72).
The ALJ also noted the Mental Residual Functional Capacity Assessment (“RFC”)
of state agency evaluator Roger Glover, Ph.D. (R. at 18). Dr. Glover indicated that Plaintiff
could engage in work involving simple instruction, one and two step tasks and little independent
decision-making. (R. at 18, 275 – 76). See Chandler v. Comm’r of Soc. Sec., 667 F. 3d 356, 361
(3d Cir. 2012) (“[s]tate agent opinions merit significant consideration”).
Of further import were the findings of treating psychiatrist Leyla Somen, M.D. –
practicing in the same outpatient clinic as Mr. Reed. (R. at 14 – 15). In her first evaluation of
Plaintiff in March 2010, Dr. Somen diagnosed Plaintiff with opioid dependence and borderline
personality disorder. (R. at 319 – 20). She assigned a GAF score of 70 – 80. (R. at 320).7
Dr. Somen opined that Plaintiff was “not reliable.” (R. at 321). He also admitted to her that he
did not take his prescribed medications every day. (R. at 321). At medication management
An individual with a GAF score of 71 – 80, may exhibit “transient and expectable reactions to
psychosocial stressors” and “no more than slight impairment in social, occupational, or school
functioning.” American Psychiatric Association: Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV-TR) 34 (4th ed. 2000).
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sessions in April and May 2010, Dr. Somen noted that Plaintiff liked his medications and,
in spite of his numerous complaints, was cooperative, organized, cognitively intact and displayed
good insight and judgment. (R. at 314 – 15). He complied with his medication regimen and
experienced no side effects. (R. at 314 – 15). In therapy sessions with Mr. Reed through
May 2010, Plaintiff’s mood was noted to be “good,” “calm,” and “euthymic.” (R. at 310 – 13).
Plaintiff saw improvement in his symptoms. (R. at 310 – 13). Mr. Reed indicated that Plaintiff’s
medications were “working well.” (R. at 310).
While Plaintiff accurately notes that there were contradictory medical findings within the
record presented to the ALJ, when “medical testimony or conclusions are conflicting, the ALJ is
not only entitled but required to choose between them.” Cotter v. Harris, 642 F. 2d 700, 705
(3d Cir.1981). In so doing, the ALJ must consider all the evidence and provide a reason for
discounting rejected evidence. Adorno v. Shalala, 40 F. 3d 43, 48 (3d Cir. 1994) (citing Stewart
v. Sec’y of Health, Educ., and Welfare, 714 F. 2d 287, 290 (3d Cir. 1983)). However, an ALJ is
not bound by the findings of even treating physicians, as the ALJ is the ultimate arbiter of
disability eligibility. Chandler, 667 F.3d at 361 (quoting Brown v. Astrue, 649 F. 3d 193, 197 n.
2 (3d Cir. 2011)); Adorno, 40 F. 3d at 47 – 48. A medical finding of “disabled,” or “unable to
work,” is not dispositive, and the ALJ must “weigh the relative worth” of medical opinions.
Adorno, 40 F. 3d at 47 – 48 (citing Wright v. Sullivan, 900 F. 2d 675, 683 (3d Cir. 1990); Cotter,
642 F. 2d at 705). Furthermore, a medical opinion is not entitled to any weight if unsupported by
objective evidence in the medical record. Plummer v. Apfel, 186 F. 3d 422, 430 (3d Cir. 1999)
(citing Jones v. Sullivan, 954 F. 2d 125, 129 (3d Cir. 1991)).
In the present case, the ALJ bolstered his disability decision with the relatively mild-tomoderate findings of two treating psychiatrists, a consultative examiner, and a state agency

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evaluator – none of whom indicated that Plaintiff was so limited as to preclude the ability to
sustain full-time work. None of the findings comported with the more severe conclusions
reached by Dennis Kreinbrook, Ph.D., a consultative examiner, Victor F. Jabbour, M.D.,
a primary care physician, and Mr. Reed, a therapist.
Plaintiff also cites primary care physician Dr. Jabbour to bolster his claims of disabling
limitations. (R. at 19, 329 – 32). No objective medical findings or narrative accompanied
Dr. Jabbour’s RFC. Additionally, Plaintiff fails to note that even Dr. Jabbour found Plaintiff to
have only moderate difficulty with concentration. (R. at 330). Yet, equivocally, Dr. Jabbour
believed that Plaintiff was psychologically incapable of working due to concentration and
inability to follow instructions. (R. at 331).
In conjunction with Mr. Reed, Dr. Kreinbrook completed a functional assessment of
Plaintiff on June 21, 2009. (R. at 19, 426 – 29). It was determined that Plaintiff suffered from
ADHD, recurrent, moderate bipolar disorder, generalized anxiety disorder and opioid
dependence in sustained remission. (R. at 428). Plaintiff’s GAF score was noted to be 50.
(R. at 428).8 It was the opinion of Dr. Kreinbrook and Mr. Reed that Plaintiff had moderate to
severe impairment in overall functioning. (R. at 428 – 29). This included severe impairment in
attention, memory and recall. (R. at 428). His thought was tangential, he was irritable, and he
was anxious. (R. at 428). Plaintiff was considered unable to effectively function within the
home, work or academic environments. (R. at 428). Plaintiff reported to Dr. Kreinbrook and
Mr. Reed that therapy had provided him with minimal benefit. (R. at 428). However, as found

An individual with a GAF score of 41 – 50 may have “[s]erious symptoms (e.g., suicidal
ideation …)” or “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 (DSM-IV-TR) 34 (4th ed. 2000).
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by the ALJ, these conclusions were not consistent with the findings of other medical sources on
record. (R. at 14, 19).
The findings of Dr. Kreinbrook, Dr. Jabbour and Mr. Reed notwithstanding, the Court
holds that the ALJ identified adequate objective contradictory evidence from the record to justify
according those findings diminished weight. While there is no doubt that Plaintiff experienced
functional limitation as a result of his impairments, the Court finds that the ALJ adequately
accommodated Plaintiff’s credibly established limitations in his RFC and hypothetical question
to the vocational expert.
For all of the reasons stated above, the Court hereby enters the following:
II. ORDER
Plaintiff’s Motion for Summary Judgment (ECF No. 7) is DENIED, Defendant’s Motion
for Summary Judgment (ECF No. 9) is GRANTED, and the decision of the ALJ is
AFFIRMED pursuant to the fourth sentence of 42 U.S.C. ' 405(g).
IT IS SO ORDERED.

September 18, 2013

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

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