Filed: Sep. 27, 2019
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 17-3381 Keisha Marie Sutherland, Appellant v. Commissioner Social Security On Appeal from the United States District Court for the District of Delaware (District Court No.: 1-16-cv-00184) District Court Judge: Honorable Leonard P. Stark Argued on July 1, 2019 (Opinion filed September 27, 2019) Before: McKEE, PORTER and RENDELL, Circuit Judges Benjamin R. Barnett Dechert 2929 Arch Street 18th Floor, Cira Centre Philadelph
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 17-3381 Keisha Marie Sutherland, Appellant v. Commissioner Social Security On Appeal from the United States District Court for the District of Delaware (District Court No.: 1-16-cv-00184) District Court Judge: Honorable Leonard P. Stark Argued on July 1, 2019 (Opinion filed September 27, 2019) Before: McKEE, PORTER and RENDELL, Circuit Judges Benjamin R. Barnett Dechert 2929 Arch Street 18th Floor, Cira Centre Philadelphi..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-3381
Keisha Marie Sutherland,
Appellant
v.
Commissioner Social Security
On Appeal from the United States District Court
for the District of Delaware
(District Court No.: 1-16-cv-00184)
District Court Judge: Honorable Leonard P. Stark
Argued on July 1, 2019
(Opinion filed September 27, 2019)
Before: McKEE, PORTER and RENDELL, Circuit Judges
Benjamin R. Barnett
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
Jane Tomic (Argued)
University of Pennsylvania
School of Law
3400 Chestnut street
Philadelphia, PA 19104
Christopher Trueax
Pepper Hamilton
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103
Counsel for Appellant
Heather Benderson
Gregg W. Marsano (Argued)
Social Security Administration
Office of General Counsel SSA/PGC/ Region III
300 Spring Garden Street
6th Floor
P. O. Box 41777
Philadelphia, PA 19123
Counsel for Appellee
____________
O P I N I O N*
____________
RENDELL, Circuit Judge,
Keisha Sutherland was diagnosed with bipolar disorder in 2007. She twice
applied for social security benefits—once in 2007 and once in 2010. The petitions were
eventually consolidated, and the Social Security Administration denied her application.
After a review of the record, focusing specifically on the closed period beginning in 2007
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
through November 2008, we conclude that the Administration’s decision is supported by
substantial evidence. We will thus affirm.
I.
In July 2007, Sutherland was hospitalized after the police found her wandering
outside her home, incoherent and partially clothed.1 After she was discharged,
Sutherland began psychiatric treatment with Dr. Habibah E. Mosley. Dr. Mosley
diagnosed Sutherland with bipolar disorder and assessed her a Global Assessment of
Functioning (“GAF”) score of 50, which suggests “serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).” J.A. 30
(quoting Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) 34 (4th
Ed. 2000)). Dr. Mosley prescribed medication to treat Sutherland’s symptoms.
Sutherland subsequently applied for social security disability benefits and supplemental
security income.
As a result of the application, Dr. Frederick Kurz conducted a consultative
examination of Sutherland in October 2007. Dr. Kurz concluded that Sutherland had no
express indications of depression or anxiety and assessed her a GAF score of 65,
suggesting only mild impairment. He noted that if Sutherland “consistently took her
medication,” her symptoms could be “stabilized and controlled.” J.A. 32. Dr. Douglas
Fugate, a state agency psychologist, also reviewed Sutherland’s records, but did not
1
The facts presented and the characterizations of the physicians’ reports and opinions are
primarily taken from the two District Court opinions in this matter. See J.A. 1–21; J.A.
28–40.
3
personally examine Sutherland. Dr. Fugate concluded that Sutherland had “mild
restriction of activities of daily living, moderate difficulties in maintaining concentration,
persistence, or pace, and one or two episodes of decompensation for an extended
duration.” Id. He also identified a “history of hospitalizations and noncompliance in
taking her medication,” but ultimately reached the same conclusion as Dr. Kurz and
assessed her a GAF score of 65.
Id.
Sutherland continued to see Dr. Mosley through 2008. At several points, Dr.
Mosley adjusted Sutherland’s medication dosages to properly treat her bipolar disorder.
But later that year, Sutherland suffered a relapse and reported that she stopped taking her
medication. She was again hospitalized. Following that period of hospitalization, Dr.
Mosley reported that Sutherland was “doing better” and adjusted her medication. J.A.
31. Dr. Mosley then completed a mental impairment questionnaire for the purposes of
Sutherland’s application. She concluded that Sutherland responded well to treatment,
that she was limited but satisfactory in her ability to remember work-like procedures and
maintain regular attendance, and that she was seriously limited in but not precluded from
understanding simple instructions, maintaining work routines, and performing at a
consistence pace. She further concluded that Sutherland was “moderately limited in
performing the activities of daily living; would have moderate difficulties in maintaining
social functioning and in maintaining concentration persistence, or pace; and had three,
two-week episodes of decompensation within a twelve-month period.” J.A. 31–32. She
also concluded that Sutherland is “markedly limited and unable to meet competitive
standards in accepting instructions and responding appropriately to criticism from
4
supervisors, getting along with co-workers or peers without unduly distracting them or
exhibiting behavioral extremes, and dealing with normal work stress.” J.A. 31. Dr.
Mosley assessed her a GAF score of 40.
After review of Sutherland’s application and her medical records, the ALJ
concluded that, despite her diagnosis of bipolar disorder, Sutherland had the residual
functional capacity (“RFC”) “to perform simple, unskilled light work . . . [that] required
no more than occasional interaction with supervisors, co-workers, and the general
public.” J.A. 35. The Appeals Council affirmed. On review, the United States District
Court for the District of Delaware granted Sutherland’s motion for summary judgment
and remanded for further proceedings. It determined that “the ALJ pointed to no medical
evidence that would contradict Dr. Mosley’s December 2008 conclusion that
[Sutherland’s] GAF was 40 . . . . If the conclusion was based on the ALJ’s own medical
judgment (as it appears to have been), that would be improper.” J.A. 40. Because the
ALJ “articulated no viable basis to discount Dr. Mosley’s opinion,” the District Court
remanded to the Administration to provide further explanation. J.A. 40.
On remand, the Appeals Council instructed the ALJ to: (1) address Dr. Mosley’s
GAF scores of 40 and 50 and the reasons for discrediting those opinions; (2) evaluate the
weight given to Dr. Mosley’s opinion, and whether contradictory medical evidence
exists; and (3) further evaluate the GAF scores. The Appeals Council also instructed that,
if warranted, the ALJ should update the medical evidence on the record, further consider
Sutherland’s RFC, and obtain supplemental evidence from a vocational expert. At the
time of the remand, Sutherland had a second ongoing application for disability benefits
5
beginning in 2009. That was consolidated with the original petition and remanded to the
ALJ to review Sutherland’s claim from 2007 through 2014. The closed period of the
initial application from 2007 through the hospitalization in November 2008, however,
was of particular importance on remand.
After a hearing and testimony from Sutherland, the ALJ denied the consolidated
application. It first evaluated Dr. Mosley’s opinion of disability and declined to give it
controlling weight. First, there were virtually no treatment records from Dr. Mosley.
Thus, Dr. Mosley’s opinion lacked corroborating outpatient records to confirm the
treatment relationship between Dr. Mosley and Sutherland. Specifically, the ALJ only
had from Dr. Mosley an August 2007 psychological evaluation, prescriptions from 2007
and 2008, the November 20, 2008 treatment notes, and the December 2008 medical
questionnaire. The notes from August 2007 document a perfect score on a mini-mental
status examination. The notes from the November 2008 examination, which immediately
preceded the issuance of Dr. Mosley’s disability opinion, recorded that she was doing
better after the hospitalization and had a clear and organized thought process, an
appropriate affect, and no delusions or hallucinations. While Sutherland’s attention and
concentration were impaired, her mental status during the periods of hospitalization
improved when she resumed medication. This was also weighed against the 2007 Dr.
Kurz report, which found no mental status deficiencies and only mild limitations in
understanding simple instructions.
As to Dr. Mosley’s assessment of a GAF score of 40, the ALJ concluded that it
should be given some weight as of November 2008 because Sutherland had recently been
6
discharged from inpatient treatment. And although during this period she received GAF
scores of 15 and 14, those scores were likely reasonable as they were assessed during her
November 2008 hospitalization. The ALJ further noted that the GAF score of 14 may be
a clerical error, because the hospital would not have given Sutherland a lower score than
her initial score when it also discharged her as stable.
Because the appeal was consolidated, the ALJ considered additional medical
evidence from 2010 to 2014. Dr. De Yanez treated Sutherland and assessed her a GAF
score of 65 in 2011, and 60 in 2012. On a medical questionnaire form, Dr. De Yanez
concluded that Sutherland’s bipolar disorder could be managed with medication. Dr. De
Yanez’s outlook for Sutherland was more positive than others, concluding that
Sutherland had the ability to respond to detailed instructions and perform complex tasks.
The ALJ credited Dr. De Yanez’s assessment in part but concluded that Sutherland is
more limited than Dr. De Yanez found.
Sutherland’s most recent treating physicians, Dr. Dupree and therapist Roberts,
treated Sutherland beginning in 2012. In a 2014 medical questionnaire, they concluded
that Sutherland is unable to work on a full-time basis, keep a schedule, follow verbal and
written instructions, and participate in work even with accommodations or modifications.
They further noted that Sutherland is unable to work due to the severity of her episodes.
The ALJ, after detailing the treatment notes in the record from Dr. Dupree and Roberts,
rejected their conclusion because the record did not support the finding that Sutherland
could not work in any capacity or that she had suffered from severe episodes since her
November 2008 hospitalization. As a result, the ALJ denied the applications for benefits
7
because Sutherland has the ability to perform unskilled work activity with additional
limitations.
The Appeals Council affirmed, and Sutherland again petitioned for review in the
District Court. It granted summary judgment in favor of the Administration. Sutherland
subsequently appealed.
II.2
The Administration reviews applications for disability benefits by conducting a
five-step sequential analysis. First, it determines whether the claimant is engaged in
substantial gainful activity. See Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir. 1986).
If the claimant is not, it then determines whether the claimant is suffering from a severe
impairment or a combination of impairments that is severe.
Id. It then reviews a list of
impairments that automatically preclude any gainful work.
Id. at 583–84. If the
claimant’s impairment is not on the list, it then determines whether the claimant retains
the RFC to perform past relevant work, i.e., “that which [the] individual is still able to do
despite the limitations caused by his or her impairment(s).” Fargnoli v. Massanari,
247
F.3d 34, 40 (3d Cir. 2001) (quoting Burnett v. Comm’r of Soc. Sec. Admin.,
220 F.3d 112,
121 (3d Cir. 2000)). And if he or she cannot return to past work, it then determines
whether the impairment precludes adjustment to any available work. See Brewster, 786
2
The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g). We have
jurisdiction over the District Court’s final order pursuant to 28 U.S.C. §
1291.
8
F.2d at 584. If the claimant is unable to adjust to any available work, they are entitled to
benefits.
We review the Administration’s final decision under the same standard the District
Court applied: substantial evidence. We ask if the decision is supported by “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v.
Underwood,
487 U.S. 552, 565 (1988)). Substantial evidence requires “more than a
[mere] scintilla” but may be less than a preponderance of the evidence. Tri-state Truck
Serv. Inc. v. NLRB,
616 F.2d 65, 69 (3d Cir. 1980) (quoting Consolidated Edison Co. v.
NLRB,
305 U.S. 197, 229 (1938)). We do not “weigh the evidence or substitute [our]
conclusions for those of the fact-finder.” Williams v. Sullivan,
970 F.2d 1178, 1182 (3d
Cir. 1992). “A single piece of evidence will not satisfy the substantiality test if the
[Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence.
Nor is evidence substantial if it is overwhelmed by other evidence—particularly certain
types of evidence (e.g., that offered by treating physicians)—or if it really constitutes not
evidence but mere conclusion.” Kent v. Schweiker,
710 F.2d 110, 114 (3d Cir. 1983).
III.
A. The ALJ’s decision is supported by substantial evidence.
Sutherland urges that the Administration’s decision is not supported by substantial
evidence and that we should award her benefits. She specifically points to the closed
period of the original application, i.e., the 2007–2008 period of disability between the
initial application and the subsequent 2009 ALJ decision. Sutherland argues that the ALJ
9
improperly discredited Dr. Mosley’s opinion in this time period. She argues that the ALJ
relied on later-in-time evidence to conclude that Sutherland had the RFC to work.
Specifically, she argues the ALJ relied on the mental impairment questionnaire of Dr. De
Yanez to discredit Dr. Mosley’s 2008 questionnaire. The only medical evidence that
could contradict Dr. Mosley’s opinion, she argues, is the consultative examination by Dr.
Kurz and the record review by Dr. Fugate. Sutherland believes these submissions cannot
trump Dr. Mosley’s findings. See Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (“A
cardinal principle guiding disability eligibility determinations is that the ALJ accord
treating physicians’ reports great weight, especially when their opinions reflect expert
judgment based on a continuing observation of the patient’s condition over a prolonged
period of time.” (internal quotation marks omitted)).
Sutherland principally relies on our decision in Morales. There, the claimant had
Dependent Personality Disorder and a history of drug and alcohol abuse. Id. at 312–13.
A treating physician concluded that Morales had an “impaired ability to concentrate,
perform activities within a schedule, make decisions, be aware of normal hazards, and
function when under stress or change.”
Id. at 313. His long-time treating physician, Dr.
Erro, further concluded that “his ability to deal with work stresses, behave in an
emotionally stable manner, relate predictably in social situations, and demonstrate
reliability is . . . ‘poor or none.’”
Id. at 315. The treatment records corroborated that
conclusion.
Id. Another physician noted that Morales appeared to be intentionally
obstructive and purposefully answered questions incorrectly.
Id. at 314. A non-
examining psychologist, lacking some of the other medical reports, reached a contrary
10
conclusion: Morales is not significantly limited and can “remember locations and work-
like procedures, understand and remember simple instructions, ask simple questions or
request assistance, maintain socially appropriate behavior, take normal precautions, and
use public transportation.” Id. at 314. Despite the weight of evidence in one direction,
the ALJ relied on the non-examining physician’s report and discredited the treating
physician’s report “based on his personal observations of Morales at the administrative
hearing, the evidence in the record of malingering, and notations in Dr. Erro’s treatment
notes that Morales was stable and well controlled with medication.”
Id. at 317. We
concluded that the ALJ’s decision lacked substantial evidence because it relied on the
non-treating examiner’s conclusion and its own opinion, without properly discrediting the
weight of evidence suggesting the claimant was disabled. See
id. at 319 (“Shorn of its
rhetoric, this determination rests solely on a rejection of medically-credited
symptomatology and opinion, the ALJ’s personal observations and speculation, and the
testimony of a non-examining vocational expert[.]”).
The evidence on the record here does not warrant the same conclusion. Unlike in
Morales, Dr. Kurz’s consultative examination included a personal examination of
Sutherland. Contra id. at 319 (emphasizing the ALJ’s reliance on a non-examining
physician’s report). As part of the examination, Dr. Kurz completed an identical medical
impairment questionnaire as Dr. Mosley and concluded that Sutherland had only mild
limitations in understanding simple instructions and performing tasks. While it is true
that “[a] cardinal principle guiding disability eligibility determinations is that the ALJ
accord treating physicians great weight,” the ALJ still “may choose whom to credit but
11
‘cannot reject evidence for no reason or the wrong reason.’” Id. at 317 (quoting Plummer
v. Apfel,
186 F.3d 422, 429 (3d Cir. 1999)). In addition to placing due weight on Dr.
Kurz’s examination, the ALJ gave multiple sound reasons to discredit Dr. Mosley’s
opinion: (1) There are no outpatient records from Dr. Mosley to confirm her treatment
relationship; (2) Dr. Mosley did not record any deficiencies after Sutherland’s
hospitalization in November 2008 before completing the medical questionnaire; (3) She
performed well on the mini-mental status examination in August 2007; and (4)
Sutherland saw improvement after hospitalization when medication resumed. Unlike
Morales, the ALJ here did not speculate regarding the reasons for claimant’s alleged
disability, but rather relied upon evidence in the record to conclude that Sutherland is not
disabled.3
Sutherland also argues that the ALJ failed to consider enumerated factors when
concluding that Dr. Mosley’s opinion should not receive controlling weight. See 20
C.F.R. § 404.1527(c) (setting out factors). Under the regulations, the ALJ should
“consider all of the following factors in deciding the weight [to] give to any medical
opinion”: (1) examining relationship; (2) treatment relationship including length of
treatment and nature and extent of the treatment; (3) supportability of the evidence; (4)
consistency with other evidence; (5) specialization of the professional; and (6) other
3
Sutherland argues that the ALJ inappropriately relied on later-in-time evidence, namely
Dr. De Yanez’s report in 2011 that assessed a GAF score of 65, to discredit Dr. Mosley’s
opinion. Although the ALJ references Dr. De Yanez’s report when discussing Dr.
Mosley’s opinion, even without her report, the ALJ offered substantial evidence to
conclude that Dr. Mosley’s opinion should not receive controlling weight.
12
factors brought to the attention of the ALJ. Id. at § 404.1527(c)(1)–(6). Although the
ALJ did not specifically identify each factor, all relevant factors were considered
throughout the lengthy, detailed opinion. See
Massanari, 247 F.3d at 42 (“Although we
do not expect the ALJ to make reference to every relevant treatment note in a case . . . we
do expect the ALJ, as the factfinder, to consider and evaluate the medical evidence in the
record consistent with his responsibilities under the regulations and case law.”). Here,
the ALJ conducted a thorough examination of the record and appropriately considered the
relevant factors.
Sutherland also argues that the ALJ failed to appropriately consider the low GAF
scores during the November 2008 hospitalization and relied on speculative inferences in
dismissing them. To the contrary, the ALJ thoroughly considered the scores. It noted
that the low GAF scores accurately reflect the time period during and immediately after
hospitalization, but do not extend to later time periods. It further dismissed GAF scores,
in general, as an unreliable indicator of a claimant’s overall disability status and noted
that the Diagnostic and Statistical Manual has since ceased use of GAF scores. And
when addressing the particularly low GAF score of 14, it concluded that this may have
been a clerical error. Far from a speculative inference, that conclusion is supported by
substantial evidence because it is unlikely the hospital would have discharged Sutherland
if they also concluded she had a lower GAF score than when admitted. It nonetheless
credited the low GAF scores as reasonable for the limited time period when Mosley was
hospitalized and in need of medical care. Taken together, the ALJ supported its decision
13
to credit the low GAF scores for a limited time period and dismiss the scores as indicative
of Sutherland’s overall RFC with substantial evidence.
Finally, Sutherland argues that the ALJ inappropriately relied on the fact that
Sutherland is stable when compliant with her medication. See Brownawell v. Comm’r of
Soc. Sec., 554 F.3d 352, 356 (3d Cir. 2008) (“[A] doctor’s observation that a patient is
‘stable and well controlled with medication during treatment does not [necessarily]
support the medical conclusion that [the patient] can return to work.’” (quoting
Morales,
225 F.3d at 319)). But in Brownawell, the ALJ’s reliance on the physician’s treatment
note that Brownawell’s symptoms were stable with medication went against that
physician’s ultimate conclusion that Brownawell is disabled. See
id. at 355 (“It is clear
that Brownawell’s treating physician considered her to be disabled.”). Here, both Dr.
Kurz and Dr. De Yanez’s observations that, when compliant, Sutherland’s bipolar
disorder can be controlled, coincide with conclusions that Sutherland has the capacity to
work. Thus the ALJ’s conclusion that Sutherland can return to work, even though it may
require medical compliance, is supported by substantial evidence.
As for the 2009 to 2014 period of alleged disability, the ALJ’s conclusion that
Sutherland was not disabled is also supported by substantial evidence. Dr. De Yanez
treated Sutherland from 2010 to 2012. In 2011, Dr. De Yanez assessed Sutherland a
GAF score of 65, and consistently reported in her treatment notes that Sutherland was
doing well. In 2012, Dr. De Yanez completed a medical impairment questionnaire and
concluded that Sutherland was unlimited or very good in her ability to remember work-
like procedure, carry out simple instructions, and maintain regular attendance. She noted
14
that Sutherland was limited but satisfactory in her ability to remember and carry out
detailed instructions. She concluded that her impairments would not cause her to be
absent from work. Although Dr. De Yanez provided the most positive outlook for
Sutherland, the ALJ moderated Dr. De Yanez’s conclusions, giving considerable weight
to her conclusion that Sutherland can follow simple instructions, but rejecting the opinion
that the claimant can perform more complex tasks. That conclusion was based on the
treatment records, as well as the opinions of the other treating physicians.
As for Dr. Dupree and Roberts, the ALJ also rejected their conclusion that
Sutherland could not return to work in any capacity, in part due to the severity of her
episodes. The ALJ reasonably concluded, after detailing Dr. Dupree and Roberts’
treatment notes, that, despite several periods of medical noncompliance, there is minimal
evidence of severe episodes or relapses since Sutherland’s 2008 hospitalization. The
ALJ’s decision that those periods of medical non-compliance do not amount to work-
precluding episodes is supported by substantial evidence when considering the other
opinions and evidence in the record.
B. Remand is inappropriate, as the record contains sufficient medical
documentation to determine Sutherland’s disability status.
Sutherland argues that the ALJ failed to update the medical record on remand with
sufficient evidence to make a disability determination. See Ferguson v. Schweiker, 765
F.2d 31, 36 n.4 (3d Cir. 1985) (“Thus, in an SSI case, if there is insufficient medical
documentation or if the medical documentation is unclear, it is incumbent upon the
Secretary to secure any additional evidence needed to make a sound determination.”).
15
But here, the medical evidence is more than sufficient to make a disability determination,
including documentation from several treating and non-treating physicians, as well as
testimony from Sutherland at multiple hearings.4 Thus, the ALJ did not err in denying
disability status based on the record before it.
IV
We will affirm the District Court’s order granting Summary Judgment because the
ALJ’s conclusion that Sutherland is not disabled is supported by substantial evidence.
4
Sutherland notes that the record only includes Dr. Mosley’s prescriptions from 2007 to
2008, and not the corresponding treatment notes. While those may be helpful to a
determination, the record was sufficient for the ALJ to make a determination of disability
without them.
16
McKee, Circuit Judge, Dissenting.
I cannot agree that the ALJ’s decision to deny Ms.
Sutherland disability benefits is supported by substantial
evidence, and I therefore must respectfully dissent from my
colleagues’ decision to affirm the ALJ’s ruling.
The ALJ not only rejected the conclusions of Ms.
Sutherland’s treating physicians, Dr. Mosley and Dr. Dupree,
he also ignored the conclusion of Sutherland’s therapist, Ms.
Roberts. Those heath care professionals had the opportunity to
observe Sutherland over a protracted period while she was
compliant and taking her medication, as well as during those
periods when she was either not taking her medication or when
her symptoms were not adequately addressed by her
medication. All three of those healthcare professionals
concluded that Sutherland’s bipolar disorder with psychotic
features prevented her from working. Moreover, their
assessment is consistent with, and confirmed by, the objective
metric of her GAF scores.
The ALJ’s decision to the contrary failed to give
1
the treating physicians’ medical conclusions the “great weight”
required by our precedent, particularly in mental health cases.
See Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000).
Instead, the ALJ based his decision on his own review
of the medical evidence and reliance on the statements of a
non-treating physician who evaluated Ms. Sutherland at one
moment in time. Most egregiously, however, the ALJ even
interjected his own speculative conclusion that Sutherland’s
GAF score of 14—indicating gross impairment—could be
attributed to a clerical error. That conclusion is not based upon
any testimony of any health care professional; it is based only
upon the ALJ’s rank speculation.
In Morales, we reaffirmed the principle that when an
ALJ rejects a treating physician’s conclusion, the ALJ “may
not make speculative inferences from medical reports” or
substitute the ALJ’s “own credibility judgments, speculation,
or lay opinion.” Id. Yet, that is precisely what this ALJ did.
The ALJ’s supposition that a possible clerical error accounts
for evidence inconvenient to his conclusion is precisely the
kind of speculative inference that Morales prohibits.
My colleagues’ contrary conclusion relies upon the
opinions of Dr. Kurz—a non-treating physician or
2
“consultative psychologist”—and Dr. Yanez. But that is
inconsistent with our caution in Brownawell v. Comm’r Soc.
Sec., 554 F.3d 352, 356 (3d Cir. 2008) (citing
Morales, 225
F.3d at 319). There, we explained that stability on medication
does not necessarily support a medical conclusion that the
claimant can return to work.
I therefore believe we should reverse the District
Court’s order affirming the ALJ’s denial of disability benefits,
and instead direct that court to award benefits that she is clearly
entitled to on this record. This administrative record has been
fully developed and there is substantial evidence that
Sutherland is disabled and entitled to benefits. See id. at 357-
58. “[T]he disability determination process has been delayed
due to factors beyond the claimant’s control.”
Id. at 358. Ms.
Sutherland has waited nearly 12 years for her claims to be
adjudicated. There is no good reason to make her wait any
longer.
3
