Sutherland v. Colvin

Filing 18

MEMORANDUM OPINION re pending motions. Signed by Judge Leonard P. Stark on 9/22/17. (ntl)

IN THE UNITED STATES DISTRICT. COURT
FOR THE DISTRICTOFDELAWARE
·.KEISHA M. ·suTHERLAND,
Plaintiff,
Civ. No. 16-184-LPS

v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
Gary L. Smith, Esq., Newark, DE.
. Attorney for Plaintiff .

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David C. Weiss, United States Attorney, and Heather Benderson, Special Assistant United
States Attorney, UNITED STATES ATTORNEY'S bFFICE, Philadelphia, PA.
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Of Counsel: Nora Koch, Regional Chief Counsel, J.d Katie M. Gaughan, Assistant Regional
Counsel,. of the Social Security Administration, Phil~delphia, PA.
Attorneys for Defendant

MEMORANDUM OPINION
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September 22, 201 7
· Wilmington, Delaware

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to
Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for former
Commissioner Carolyn W. Colvin as defendant in this suit.

..
~

~ ~fl~

ST~.
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DistrictJudge:

INTRODUCTION
Plaintiff Keisha M. Sutherland ("Sutherland" or "Plaintiff') appeals the decision of
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Defendant Nancy A. Berryhill, the Acting Commissibner of Social Security ("the Commissioner"
or "Defendant"), denying her claim for disability ins~ance benefits ("DIB") and supplemental
security income ("SSI"), under Titles II and XVI of the Social Security Act, respectively. The
Court has jurisdiction pursuant to 42 U.S.C. § 405(g).
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Before the Court are the parties' cross-motions for summary judgme11t. (D.I. 12, 16)
Plaintiff Sutherland requests the Court find that the .ALJ must accept the unrebutted opinion of
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Sutherland's treating doctor, Dr. Habibah Mosley, arid find that Sutherland has been disabled
from her alleged onset date of April 6, 2007. (D .I. 13 at 11) The Commissioner requests that the
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Court affirm the decision denying Sutherland's claini for DIB and SSL (D.I. 17 at 14)
For the reasons stated below, the Court will deny Plaintiffs motion for summary
.judgment and grant Defendant's motion.
II.

BACKGROUND

A.

Procedural History

Sutherland filed her initial application for DIB and SSI on July 23, 2007, alleging an
onset date of April 6, 2007. (D.I. 8 ("Tr.") at 503-04) After a hearing, an Administrative Law
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Judge ("ALJ") issued a decision on April 3, 2009, fibding ·Sutherland not disabled. (Id. at 503)
On appeal, the Appeals Council affirmed the 2009

d~cision,

leading Sutherland to appeal to this

Court. (Id.)
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On September 8, 2010, while Sutherland's 2009 appeal was pending with this Court,

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Sutherland filed an amended application for DIB and SSI, amending her alleged onset date to
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· April 9, 2009. (Id. at 503-04) Sutherland's amended claims were denied, and a hearing was held
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on March 7, 2012, before a different ALJ. (Id. at 503) This ALJ issued a decision finding
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Sutherland was not disabled, and Sutherland appeale~ to the Appeals Council. (Id.)
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On July 13, 2012, this Court granted Sutherland's motion for summary judgment and
remanded the 2009 case. (Id.; see also Simmonds v. Astrue, 872 F. Supp. 2d 351 (D. Del. 2012))
On October 25, 2013, the Appeals Council vacated the 2009 decision and remanded it for further
consideration of a treating source opinion, directed that Sutherland's 2012 appeal be associated
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with the 2009 appeal, and that a new decision be iss~ed on the associated claims. (Tr. at 503)
A remand hearing was held on July 24, 2014,; at which both Sutherland and impartial
vocational expert Mitchell A. Schmidt testified. (Id.) On August 25, 2014, the ALJ issued a
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decision finding Sutherland was not disabled within the meaning of the Social Security Act from
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Sutherland's initial alleged onset date of April 2007 through the date of her decision. (Id. at 503i

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19) The Appeals Council denied Sutherland's request for review, and Sutherland appealed to
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this Court. (Id. at 309-13; D.I. 17 at 2)
B.

Factual History
1.

Background

At the time she applied for DIB and SSI, Sutl]l.erland was a 31 year-old divorced mother of
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two young daughters. (Tr. at 26; D.I. 13 at 2) Suthetland has a high school education, completed
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three-and-a-half years of college, is a former Anny Reservist, and has been trained as a Licensed
Practical Nurse. (Tr. at 26-28) She last worked in J\;-pril 2007 as a lead/charge nurse in a nursing
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home. (Id. at 29-30) While Sutherland testified thati she stopped working in April 2007 because
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· she ".started getting confused" (id. at 29), the record also shows that Sutherland told Frederick
Kurz, Ph.D., the ·consultative psychological examine~, that she stopped working because she was
not getting enough hours at work and was denied a vacation. (D.I. 17 at 3; see also Tr. at 224)
At the 2009 and 2012 ALJ hearings, Sutherl<;m.d testified that she was able to assist her
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daughters with their homework and personal hygiend, prepare their meals, walk them to the park,
and drive them to school. (Tr. at 149, 361, 364-66) Sutherland was also able to wash dishes, do
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laundry, dust, sweep, clean, and shop for groceries, a;s well as attend religious services on
Sundays and visit with friends and family. (Id. at 15~-54, 364-66) In addition, at the 2012 and
2014 ALJ hearings, Sutherland testified that she hel11ed care for her housebound grandfather,
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with whom she lived, that she was able to drive a car:, and that she had taken multiple trips to
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Jamaica during the alleged period of disability. (Id. at 349, 367, 400-02)
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2.

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Medical History

Sutherland's relevant medical history began on April 6, 2007, the date Sutherland
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testified she first "started getting confused" and· "inefplicably stopped going to work." (Tr. at
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29; D.I. 13 at 2) Sutherland subsequently had a ten-day hospital stay in July 2007 due to an
episode of confusion, after police officers found her partially clothed and unable to explain the
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whereabouts of her children. (Tr. at 202-22, 269-76; D.I. 17 at 4; D.I. 13 at 3) Sutherland was
admitted for acute exacerbation of psychotic illness and medication noncompliance with a global
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assessment of functioning (GAF) score of 30, indicating behavior that is c_onsiderably influenced
by delusions or hallucinations, serious impairment iri communication or judgment, or inability to
function in almost all areas. (Tr. at 203; D.I. 13 at 3) She was later discharged in stable
condition with a diagnosis ofbipolar affective disor4er (depressed). (Tr. at 202-03)
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On August 8, 2007, Sutherland began treatment with psychiatrist Habibah E. Mosley,
D.O. (Id. at 284-86) During her initial visit, Dr. Mo;sley reported that Sutherland appeared
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kempt, pleasant, cooperative, alert, and oriented to person, place, and time. (Id. at 285) Dr.
Mosley also reported that Sutherland had no hallucinations or suicidal ideations, and assessed a
GAF score of 50, indicating serious symptoms or serious impairment in social, occupational, or
school functioning. (Id. at 285-86) Sutherland was diagnosed with bipolar disorder with
psychotic features, and prescribed medication and cdntinuing.therapy treatment. (Id. at 286)
On October 22, 2007, Sutherland underwent a neurological evaluation with Michael J.
Carunchio, Jr., M.D. (Id. at 249-52) Dr. Carunchio ~ocumented that Sutherland appeared alert ·
and oriented to person, place, and time, and that her recent/remote memory, attention, language,
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and fund ofknowledge were all normal. (Id. at 251). Dr. Carunchio noted that he was uncertain
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as to the etiology of Sutherland's "extended periods of behavior-confusion," and that he was
"unable to glean specifics to suggest an epileptogenif component." (Id.)
While at the hospital, on November 14, 2007, Sutherland had an MRI scan of her brain,
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which showed no abnormality. (Id. at 246, 248) After being discharged from the hospital, and
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during a follow-up visit on November 29, 2007, Dr. Carunchio noted again that Sutherland was
alert, had normal speech and comprehension, and that he saw no indication of a neurologic
disturbance. (Id. at 246)
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Sutherland continued seeing Dr. Mosley on a monthly basis, and on November 7, 2008,
Dr. Mosley noted that Sutherland had stopped taking her medication, had not slept for two days,
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·had a decreased appetite, and was disoriented. (Id. at 298, 301) Sutherland was subsequently
admitted to th~ hospital again, for a stay that again lasted ten days. (Id. at 287-96) :Upon
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psychiatric examination,· Sutherland was alert,

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orient~d to place and person, and had average

intellectual functioning, but was assessed to have a GAF score of 15, indicating some danger of
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hurting oneself or others or gross impairment in communication. (Id. at 296)
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On December 1, 2008, Dr. Mosley completed a mental impairment questionnaire, noting
that Sutherland had responded well to treatment and Indicating that Sutherland was limited-butsatisfactory in her ability to remember work-like procedures, maintain regular attendance and be
punctual, and ask simple questions or request assistafi.ce. (Id. at 254-56) Dr. Mosley also
indicated that Sutherland was seriously limited, but not precluded, in her ability to understand
and carry out simpl.e instructions, maintain attention for two-hour segments, sustain an ordinary
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routine, work with others, make simple work-related decisions, complete a normal workday and
workweek, perform at a consistent pace, respond appropriately to changes in a routine work
setting, and be aware of normal hazards. (Id. at 256) Dr. Mosley found Sutherland markedly
limited and unable to meet competitive standards in ~ccepting instructions and responding
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appropriately to criticism from supervisors, getting along with co-workers or peers without
unduly distracting them or exhibiting behavioral extremes, and dealing with normal work stress.

(Id.) Dr. Mosley noted that Sutherland was moderatbly limited in performing the activities of
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daily living, would have moderate difficulties in maip.taining social functioning and in
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maintaining concentration, persistence, or pace, and pad three, two-week episodes of
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decompensation within a twelve-month period. (Id. at 257) Dr. Mosley ultimately diagnosed
Sutherland with bipolar disorder with psychotic features, and assessed a GAF score of 40,
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indicating some impairment in reality testing or communication, or major impairment. in several
areas, such as work or school, family relations, judgment, thinking, or mood. (Id. at 254) Dr.
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.Mosley concluded that Sutherland would be absent from work more than four days a month. (Id.
at 260)
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In 2009, Sutherland was treated at the Wilmington Community Mental Health Center by

Bindu Koshy, M.D. (D.I. 13 at 7; see Tr. at 835)

Dr~

Koshy referred Sutherland to Nidia

DeYanez, M.D., whom Sutherland was treated by from January 26, 2010 to February 16, 2012.
(Tr. at 835-41) Dr. DeYanez found Sutherland friendly and cooperative, but also tense and
guarded, and noted that Sutherland's sensorial memory and orientation were intact, her judgment
was fair, and her intellectual functioning was average. (Id. at 836) During these two years of
treatment, Dr. DeYanez consistently assessed a GAF score of 60, indicating moderate symptoms.

(Id. at 836, 943) In addition, Dr. DeYanez noted that when Sutherland was medication
compliant, she was stable. (Id. at 83 7)
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From June 4, 2012 to July 15, 2012, Sutherlahd was treated by Kendall Dupree, M.D. and
therapist Mariella Roberts. (D.I. 13 at 7; Tr. at 955-90, 1067-70) Ms. Roberts noted that
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Sutherland was well-oriented in all spheres, cooperative, and interested, but also anxious,
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appeared preoccupied with external stressors, and sh~wed poor judgment. (Tr. at 957) Ms.
Roberts also reported discussing with Sutherland her poor compliance with medicine, and
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relatedly, Sutherland's well-being when she was medication compliant. (Id. at 958-59) Dr.
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Dupree' s notes similarly reflected that Sutherland did well when she was medication compliant.
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(Id. at 983-88)

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3.

Consultative Examination and Opinion Evidence

On October 30, 2007, Sutherland had a consl.}ltative examination with Frederick Kurz,
Ph.D. (Tr. 223-30) Dr. Kurz noted that Sutherland's affect was constricted, but that there were

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no overt indications of depression or anxiety. (Id. at 224) Sutherland was oriented to person,
place, and time, her attention was adequate, and her *gher cognitive skills were in tact. (Id. at
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225) Dr. Kurz diagnosed Sutherland with psychosis NOS and assessed her GAF score to be 65,
indicating mild symptoms. (Id. at 225-26) Similar to Dr. De Yanez and Dr. Dupree's findings,
Dr. Kurz noted that "as long as Ms. Sutherland is compliant with her medications," her thought
disorder could be "stabilized and controlled." (Id. at 225)
That same day, Dr. Kurz completed a functional capacities evaluation of Sutherland and
opined that she was moderately limited in her abilitY,to relate to other people, partake in daily
activities, carry out instructions under ordinary super\rision, sustain work performance and
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attendance in a normal work setting, and cope with pressures of ordinary work. (Id. at 228-29)
Dr. Kurz found Sutherland to be mildly limited in her ability to understand simple instructions
and perform routine, repetitive tasks under ordinary ~upervision. (Id.)
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On November 1, 2007, Douglas Fugate, Ph.D., a state agency psychologist, conducted a,
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psychiatric review of Sutherland, concluding that she had a psychotic disorder, NOS, specifically,
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bipolar disorder and depression. (Tr. at 231, 233, 24~) Dr. Fugate found Sutherland had mild
limitation in her restriction of daily living and mode!ate difficulty in maintaining social
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functioning and maintaining concentration, persistence, or pace. (Id. at 239) Dr. Fugate noted
Sutherland's medication noncompliance, but also re~orded that "[i]t appears that when the
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[client] takes her medication as prescribed her psychiatric symptoms are controlled." (Id. at 244)
Dr. Fugate ultimately assessed Sutherland to have an estimated GAF of 65, indicating mild
symptoms, and noted that she was "able to meet the ?asic mental demands of simple work." (Id.
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at 244)
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On April 29, 2008, Pedro M. Ferreira, Ph.D., a state agency psychologist, conducted a
review of the medical evidence ofrecord and affirmed the opinion of Dr. Fugate. (Tr. at 253)

C.

The ALJ's Findings

On August 25, 2014, the ALJ issued the following findings:
1.
The claimant meets the insured status requirements of the
Social Security Act through December 31, 2011.
2.
The claimant has not engaged in substantial gainful activity
since April 6, 2007, the alleged onset date (20 CFR 404.1571 et
seq., and 416.971 et seq.).
3.
The claimant has the following severe impairment: bipolar
disorder, depression, and anxiety (20 CFR 404.1520(c) and
416.920(c)).
4.
The claimant does not have an impairment or combination
of impairments that meets or medical~y equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 4l<J.920(d), 416.925 and
416.926).
5.
After careful consideration of the entire record, the
undersigned finds that the claimant h~s the residual functional
capacity to perform medium work as 4efined in 20 CFR
404.1567(c) and 416.967(c) except sHe is limited to simple,
unskilled work with only occasional contact with co-workers or the
general public; work that is essentially isolated with only
occasional supervision; and work that· is low stress, defined as
involving only occasional changes in ihe work environment.
6.
The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416. 965).
7.
The claimant was born on November 2, 197 5 and was 31
years old, which is defined as a younger individual age 18-49, on
the alleged disability onset date. (20 CFR 404.1563 and 416.963).
8.
The claimant has at least a high school education and is
able to communicate in English (20 dFR 404.1564 and 416.964).

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9.
Transferability of job skills is not material to the
· determination of disability because using the Medical-Vocational
Rules as a framework supports a finding that the claimant is "not
. disabled," whether or not the claimant has transferable job skills
(See SSR 82-41and20 CFR Part 404, Subpart P, Appendix 2).
10.
Considering the claimant's age, education, work
experience, and residual functional capacity, there are jobs that
exist in significant numbers in the national economy that the
claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969,
and 416.969(a)).
11.
The claimant has not been under a disability, as defined in
the Social Security Act, from April 6, ·2007, through the date of
this decision (20 CFR 404.1520(g) and 416.920(g)).
(Tr. at 506-19)

III.

LEGAL STANDARDS

A.

Motion for Summary Judgment

"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is

enti~led

to judgment as a matter of law." Fed. R.

Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. See Matsushita Elec. Indus. Cp. v. Zenith Radio Corp., 475 U.S. 574, 586
n.10 (1986). A party asserting that a fact cannot be - or, alternatively, is - genuinely disputed
must support its assertion either by citing to "particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for the purposes of the motions only), admissions, interrogatory answers,
or other materials," or by "showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse pariy cannot produce admissible evidence to

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support the fact." Fed. R. Civ. P. 56(c)(l)(A) & (B). If the moving party has carried its burden,
the nonmovant must then "come forward with speci~c facts showing that there is a genuine issue
for trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will "draw
all reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000).
To defeat a motion for summary judgment, the non-moving party must "do more than
simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475
U.S. at 586-87; see also Podobnik v. U.S. Postal Service, 409 F.3d 584, 594 (3d Cir. 2005)
(stating that party opposing summary judgment "must present more than just bare assertions,
conclusory allegations or suspicions to show the existence of a genuine issue") (internal
quotation marks omitted). However, the "mere exist~nce of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment;" a factual dispute is genuine only where "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). "If the evidence is merely colorable,,or is not significantly probative, summary
judgment may be granted." Id. at 249-50 (internal citations omitted); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986) (stating entry of summary judgment is mandated "against a
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party who fails to make a showing sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear th~ burden of proof at trial").
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B.

Review of the ALJ's Findings

The Court must uphold the Commissioner's factual decisions if they are supported by

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"substantial evidence." See 42 U.S.C. §§ 40S(g), 1383(c)(3); see also Monsour Med. Ctr. v.

Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). "Substantial evidence" means less than a
preponderance of the evidence but more than a mere scintilla of evidence. See Rutherford v.

Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). As the United States Supreme Court has noted,
substantial evidence "does not mean a large or significant amount of evidence, but rather such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Pierce v. Underwood, 487 U.S. 552, 565 (1988).
In determining whether substantial evidence supports the Commissioner's findings, the
Court may not undertake a de novo review of the Commissioner's decision and may not re-weigh
the evidence of record. See Monsour, 806 F.2d at 1190-91. The Court's review is limited to the
evidence that was actually presented to the ALJ. See Matthews v. Apfel, 239 F.3d 589, 593-95
(3d Cir. 2001). However, evidence that was not submitted to the ALJ can be considered by the
Appeals Council or the District Court as a basis for remanding the matter to the Commissioner
for further proceedings, pursuant to the sixth sentence of 42 U.S.C. § 405(g). See Matthews, 239
F.3d at 592. "Credibility determinations are the province of the ALJ and only should.be
disturbed on review if not supported by substantial evidence." Gonzalez v. Astrue, 537 F. Supp.
2d 644, 657 (D. Del. 2008) (internal quotation mark~ omitted).
The Third Circuit has explained that 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.

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1983). Thus, the inquiry is not whether the Court would have made the same determination but,
rather, whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F.2d
1211, 1213 (3d Cir. 1988). Even ifthe reviewing CoUrt would have decided the case differently,
it must give deference to the ALJ and affirm the Commissioner's decision if it is supported by
substantial evidence. See Monsour, 806 F.2d at 1190-91.
IV.

DISCUSSION

A.

Disability Determination Process
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Title II of the Social Security Act, 42 U.S.C. ~ 423(a)(l)(D), "provides for the payment of
insurance benefits to persons who have contributed to the program and who suffer from a
physical or mental disability." Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Title XVI of the
Social Security Act provides for the payment of disability benefits to indigent persons under the
SSI program. 42 U.S.C. § 1382(a). A "disability" is.defined for purposes of SSI and DIB as the
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inability "to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months." See 42 U.S.C. §§
423(d)(l)(A), 1382c(a)(3)(A). A claimant is disabled "only if his physical or mental impairment
or impairments are of such severity that he is not onl:y unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B);

see also Barnhart v. Thomas, 540 U.S. 20, 21-23 (2003).
In determining whether a person is disabled, the Commissioner is required to perform a

five-step sequential analysis. See 20 C.F .R. §§ 404. ~ 520, 416.920; Plummer v. Apfel, 186 F .3d
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422, 427-28 (3d Cir. 1999). If a finding of disability br nondisability can be made at any point in
the sequential process, the Commissioner will not review the claim further. See 20 C.F .R.
§§ 404.1520(a)(4), 416.920(a)(4).
At step one, the Commissioner must determi1te whether the claimant is engaged in any
substantial gainful activity. See 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(1) (mandating
finding ofnondisability when claimant is engaged in substantial gainful activity). If the claimant
is not engaged in substantial gainful activity, step two requires the Commissioner to determine
whether the claimant is suffering from a severe impairment or a combination of impairments that
is severe. See 20 C.F.R. §§ 404.1520(a)(4)(ii) (manqating finding ofnondisabilitywhen
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claimant's impairments are not severe), 416.920(a)(4)(ii). If the claimant's impairments are
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severe, the Commissioner, at step three, compares the claimant's impairments to a list of
impairments that are presumed severe enough to preclude any gainful work. See 20 C.F .R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Plummer, 186 F.3d at 428. When a claimant's
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impairment or its equivalent matches an impairment ~n the listing, the claimant is presumed
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disabled.- See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). Ifa claimant's impairment,
either singly or in combination, fails to meet or medically equal any listing, the analysis
continues to steps four and five. See 20 C.F.R. §§ 404.1520(e), 416.920(e).
At step four, the Commissioner determines whether the claimant retains the RFC to
perform his past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv) (stating
that claimant is not disabled if claimant is able to return to past relevant work); Plummer, 186
F.3d at 428. A claimant's RFC is "that which [the] individual is still able to do despite the
limitations caused by his or her impairment(s)." Fargnoli v. Halter, 247 F.3d 34, 40 (3d Cir.

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2001 ). "The claimant bears the burden of demonstrating an inability to return to her past relevant
work." Plummer, 186 F.3d at 428.

If the claimant is unable to return to her past :r;elevant work, step five requires the
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Commissioner to determine whether the claimant's impairments preclude her from adjusting to
· any other available work. See 20 C.F.R. §§ 404.1520(g), 416.920(g) (mandating finding of
nondisability when claimant can adjust to other work); Plummer, 186 F .3d at 428. At this last
step, the burden is on the Commissioner to show that the claimant is capable of performing other
available work before denying disability benefits. See Plummer, 186 F.3d at 428. In other
words, the Commissioner must prove that "there are other jobs.existing in significant numbers in
the national economy which the claimant can perfonµ, consistent with her medical impairments,
age, education, past work experience, and [RFC]." Id. In making this determination, the.ALJ
must analyze the cumufative effect of all of the claimant's impairments. See id. At this step, the
ALJ often seeks the assistance of a VE. See id.

B.

Issues Raised on Appeal

On appeal, Sutherland raises four arguments: (1) the ALJ improperly weighed the
opinions of treating psychiatrist, Dr. DeYanez, and examining consultant, Dr. Kurz; (2) the ALJ
failed to distinguish between Sutherland's ability to function in her home environment and her
ability to function in the more demanding, stressful environment of a normal workplace; (3) the
ALJ failed to obtain the consultative examination recommended by the Appeals Council, ~hich
would have been needed to rebut the opinions of Sutherland's treating psychiatrist, Dr. Mosley;
and (4) the ALJ improperly "mashed up non-contemporaneous evidence" in deciding that
Sutherland was not disabled for the entire alleged period of disability, rather than determining

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whether Sutherland was disabled for any continuous ,one-year period between the alleged onset
date and the date of the July 2014 hearing. (D.I. 13 ~t 8-9)
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The Commissioner responds that, first, some portions of Dr. Mosley's opinion1

including that Sutherland was moderately limited in activities of daily living, had a GAF score of
40, and would miss more than four days of work a morith-were contradicted by other
substantial evidence in the record, and the portions of Dr. Mosley's opinion that were supported
by the record were given appropriate weight. (D.I. 17 at 12-13) Next, the Commissioner asserts
that the ALJ's opinion was properly based on the opinions of Dr. DeYanez and the state agency
psychologists' and consultative examiner's opinions.1I (Id.) Finally, the Commissioner contends
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that Sutherland's ability to "engage in a wide array of activities," including caring for her
I

grandfather and two children, traveling to Jamaica, a[d conducting ordinary household chores,
all supported the ALJ's assessment. (Id. at 14)
As detailed further below, the Court agrees with the Commissioner and finds that
substantial evidence supports the ALJ' s findings.

1.

Weight of Opinions

Sutherland contends that the ALJ improperly weighed the opinions of her treating
psychiatrist, Dr. DeYanez, and the examining consultant, Dr. Kurz. In reviewing the ALJ's
analysis, it is not for the Court to re-weigh the medical 9pinions in the record. See Gonzalez v.
Astrue, 537 F. Supp. 2d 644, 659 (D. Del. 2008). Rather, the Court must determine whether

substantial evidence supports the ALJ' s weighing of those opinions. See id.
First, Sutherland contends that Dr. Kurz's assessment was given too much weight, as it
was only based on a one-time examination without the benefit of review of Sutherland's
15

~ntire

I

medical record. (D.I. 13 at 9) But as a state agency psychological consultant, Dr. Kurz is
considered an expert in the evaluation of medical iss"iles in disability claims, and his opinion on
I

the severity of Sutherland's condition must be consiqered by the ALJ. See 20 C.F.R.
I

404.1527(e)(2)(i), 416.927(e)(2)(i). Accordingly,

th~ fact that Dr. Kurz conducted only one

examination does not automatically reduce the weig~t his opinion may be given. Furthermore,
the ALJ evaluated Dr. Kurz's opinion- including his mental status examination, diagnosis, and
functional capacities evaluation form - in conjunction with the entire expanded record. The ALJ
did not base her determination entirely on Dr. Kurz's! assessment, but rather the combination of
I

assessments from Sutherland's treating and non-treafing psychiatrists as well as what was
reflected in the record. The ALJ's determination to Jfford greater weight to Dr. Kurz's opinion
based on its support in the medical record is supported by substantial evidence.
Next, Sutherland argues that the ALJ's reliance on Dr. DeYanez's medical notes and
1

mental impairment questionnaire was misplaced. (D .I. 13 at 9-10) Regarding Dr. DeYanez's
I

medical notes that Sutherland was in a stable psychiatric condition, Sutherland contends that
"[n]otations that an affective disorder is stable and well-controlled under medication does not
support a medical conclusion that a patient can retuni to work." (Jd.) While these notations
I

alone may be insufficient to support a conclusion that Sutherland can return to work, the ALJ
:

also evaluated Dr. DeYanez's opinion on Sutherland's ability to perform work-related activities,
including Sutherland's ability to follow directions, be punctual, and keep a schedule, as well as
.

'

other information in the treatment records. Therefore, the ALJ' s determination to give
I

considerable weight to this portion of Dr. De Yanez' Sopinion is supported by substantial
evidence.

16

Regarding the questionnaire, Sutherland contends that the ALJ gave it too much weight
I

because it was not completed by Dr. DeYanez and Dr. DeYanez did not express an opinion on
I

·Sutherland's highest GAF score or various of her abilities/limitations. . (D.I. 13 at 10) The ALJ,
I
!

however, did not give controlling weight to this porti;on of Dr. DeYanez's opinion, noting that
"viewing the claimant's longitudinal mental health treatment history, she is overall more limited
than Dr. De Yanez found in February 2012." (Tr. at 515) Therefore, even ifthe questionnaire did
not mention each of Sutherland's abilities or limitations, the Court finds that the ALJ considered
the entire record of Sutherland's medical history along with the questionnaire, and only gave
I

i
I

weight to the portions that were ,supported by the record. 2

2.

Ability to Function in a W o~kplace
I

Sutherland contends that the ALJ failed to di~tinguish between Sutherland's abilities
i
I

during a mental status examination or at home and h~r abilities to function in a work
I

environment. (D.I. 13 at 9) The ALJ, however, evalbated Sutherland's treating psychiatrist Dr.
Mosley's opinion regarding Sutherland's ability to carry out work-related tasks, and compared
Dr. Mosley's opinion to the objective mental status r~cord, finding it inconsistent with
substantial evidence in the record. (Tr. at 513-14) The ALJ gave some weight to the "serious"
limitations noted by Dr. Mosley, including Sutherland's ability to work with detailed
I

instructions, deal with changes in the work setting a~d job stress, and interact with co-workers,
supervisors, and the general public, as those opinion~ were supported by the record. (Id.) These
While Sutherland contends that Dr. De Yan~z also completed a "Psychiatric Assessment
Form" that was not mentioned in the ALJ' s decision; "consideration of all the evidence does not
mean that the ALJ must explicitly refer to' each and ~very exhibit in the record." Mays v.
Barnhart, 227 F. Supp. 2d 443, 448 (E.D. Pa. 2002), aff'd 2003 WL 22430186 (3d Cir. Oct. 27,
2003).
2

17

limitations were accounted for in Sutherland's residual functional capacity. (Id.)
Accordingly, the Court finds that the ALJ did appropriately consider the claimant's
abilities and limitations as related to employment in ~ workplace.
I
I

3.

Supplemental Consultative ~valuation

Sutherland contests the ALJ' s decision not to order an additional consultative evaluation
to rebut Dr. Mosley's opinion. (D.I. 13 at 11) But the decision to obtain an additional evaluation
was left to the ALJ's discretion. 3 In addition, the recprd shows that at the July 24, 2014 hearing,
the ALJ gave Sutherland's counsel "the ·opportunity

io weigh in" on the additional examination,
I

and counsel represented to the Court that "generally ... [consultative evaluations are] not very
helpful" and that he would leave the decision to the discretion of the ALJ in determining whether
.

.

I

it was necessary. (D.I. 17 at 6 n.1; Tr. at 386) Accordingly, the ALJ did not err in choosing not
to order a supplemental consultative evaluation.

4.

Failure to Parse Evidence

Finally, Sutherland asserts that the ALJ erred!in "mash[ing] up non-contemporaneous
i

I

evidence" in deciding that Sutherland was not disabl~d for the entire alleged period (2007-2014)
rather than determining whether Sutherland was disabled for any continuous one-year period
within that time frame. (D .I. 13 at 11) The Court disagrees. The ALJ evaluated the medical
evidence chronologically, affording weight to the opinions that were supported by the coexisting
I

medical record. There is no evidence that the ALJ failed to evaluate discrete periods of
disability.·

3

In its remand Order, the Appeals Council instructed the ALJ to "[u]pdate the medical
I
-evidence" and that "[t]he additional evidence may inplude, if warranted and available, a
consultative examination." (Tr. at 498)

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V.

CONCLUSION
For the reasons given above, the Court will grant Defendant's motion for summary

judgment and deny Plaintiffs motion for summary judgment. An appropriate Order follows.

19