United States District Court, W.D. Pennsylvania
N. BLOCH, UNITED STATES DISTRICT JUDGE
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 the evidence, nor reverse,
merely because it would have decided the claim differently)
(citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.
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.
 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
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
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 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 non-examining 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
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
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 have a direct correlation to the