Sudler v. Colvin

Filing 17

MEMORANDUM OPINION re motions for summary judgment. Signed by Judge Leonard P. Stark on 03/30/17. (etg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ROGER L. SUDLER,
Plaintiff,

v.

C.A. No. 15-729-LPS

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant. 1
Angela Pinto Ross, DOROSHOW, PASQUALE, KRAWITZ & BHAYA, Wilmington, DE
Attorney for Plaintiff.

David C. Weiss, Acting United States Attorney, and Heather Benderson, Special Assistant
United States Attorney, United States Attorney's Office, Wilmington, DE
Nora Koch and Robert S. Drum, Office of the General Counsel, Social Security Administration,
Philadelphia, PA
Attorneys for Defendant.

MEMORANDUM OPINION

March 30, 2017
Wilmington, Delaware

1

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.

STARK, U.S. District Judge:
I.

INTRODUCTION
Plaintiff Roger L. Sudler appeals a final decision of the Acting Commissioner of Social

Security, Nancy A. Berryhill ("Commissioner" or "Defendant"), denying Plaintiffs application
for disability insurance benefits and supplemental security income, under Title II, 42 U.S.C.
§§ 401-434, and Title XVI, 42 U.S.C. §§ 1381-1383, of the Social Security Act. The Court has
jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).
Pending before the Court are cross-motions for summary judgment filed by Sudler and the
Commissioner. (See D.I. 10, 14) Sudler requests that the Court remand to the ALJ for further
proceedings. (See D.I. 11 at 20-21) The Commissioner requests that the Court affirm the
decision denying Plaintiffs application for benefits. (See D.I. 15 at 16) For the reasons set forth
below, the Court will grant in part and deny in part the motions for summary judgment and
remand for further proceedings.

II.

BACKGROUND
A.

Procedural History

On April 18, 2012, Sudler protectively filed an application for supplemental security
income benefits, alleging disability with an onset date of April 1, 2012, due to HN, bipolar
disorder, depression, mood disorder, and chronic asthma. (See D.I. 7 at 287-297 ("Tr.")) Sudler
also filed an application for disability insurance benefits on May 2, 2012. (See id.) The claims
were initially denied on August 8, 2012, and again upon reconsideration on April 19, 2013. (See

id. at 28) After a hearing before an Administrative Law Judge ("ALJ") on July 17, 2014, the ALJ
issued a decision on October 1, 2014, finding that Plaintiff did not have a disability within the

1

meaning of the Social Security Act. (See id. at 28-44) Plaintiff filed a request for review of the
ALJ's decision, which was denied on June 25, 2015, resulting in a final decision of the
Commissioner of Social Security. (See id. at 1)
On August 24, 2015, Sudler filed a complaint in the District of Delaware, seeking judicial
review of the ALJ's decision. (See D.I. 2) Sudler moved for summary judgment on April 8,
2016 (see D.I. 10), and the Commissioner filed a cross-motion for summary judgment on June 9,
2016 (see D.I. 14).
B.

Factual Background
1.

PlaintifP's testimony

Sudler was born on May 26, 1978, and lives in Dover, Delaware. (See Tr. at 55-56)
Plaintiff has a high school diploma and enrolled in some college courses at Delaware State
University, although he never received any degrees or certificates. (See id. at 57) Sudler has past
work experience as a card services manager, a group home caretaker, a cashier, and a certified
nurse's assistant. (See id. at 71-73) Plaintiff also received on-the-job training as a mechanic.
(See id. at 59) Plaintiff testified that in 2007, he was convicted in Delaware of identity theft for

making a purchase at a Target with a stolen credit card. (See id. at 59-60) Plaintiff is also a
father and sees his daughter about every other weekend. (See id. at 56)
Plaintiff stopped working in April 2012, after leaving his full-time employment as a
mechanic at a flame retardant file cabinet manufacturer, where he had worked for three )ears.
(See id. at 58-59, 74-75) Plaintiff testified to having had a "meltdown" in 2012, which resulted

in frustration, lowered attendance, and difficulty handling his job duties. (Id.) Plaintiff testified
that he took time off, began counseling at Kent Wellness Clinic, and - at the advice of his

2

therapist - stopped working altogether. (See id. at 59)
Plaintiff testified that he had no physical limitations until about three months before the
hearing and continued to drive. (See id. at 63) Plaintiff testified that his medications make him
feel sedated, and that he stays in bed most of the time. (See id. at 64) Plaintiff stated that he tried
to go to places like the library, the gym, or the mall but that he felt too lethargic to go and
stopped trying. (See id. at 64-65)

2.

Plaintiff's Medical History
a.

Voluntary Hospitalizations

Plaintiff voluntarily submitted to hospitalization for psychiatric reasons four times
between April 2012 and May 2013. (See id. at 32) Sudler was first hospitalized for about a week
in April 2012 for depression and suicidal thoughts. (See id. at 394-95) During that stay, he was
diagnosed with major depressive disorder, and his symptoms improved, in part due to being
prescribed medications to treat that disorder. (See id.) Sudler was hospitalized again, for nearly
two weeks, in August 2012, for depression and suicidal ideation, and again saw some
improvement. Sudler was diagnosed with bipolar I disorder and depression, and prescribed three
different medications. (See id. at 7 61-65) Plaintiff's third hospitalization, again the result of
depression and suicidal thoughts, lasted one week in March 2013. (See id. at 535) During his
stay, Plaintiff was prescribed a number of medications to treat his mental-health disorders. (See

id. at 538) Finally, Sudler was hospitalized for a week in May 2013 after running out of his
medications. (See id. at 772) Sudler again showed improvement during the course of his stay,
during which his medications were adjusted and he was referred to out-patient treatment. (See id.
at 775) Sudler does not report any hospital stays after May 2013.

3

b.

Out-patient Treatment

Sudler was seen by multiple doctors and therapists starting around April 2012. (See id. at
35-39) Of most importance here are Sudler's ongoing treatments with therapist Henriette Morris
and psychiatrist Berjees Mukhtar. Following his August 2012 hospitalization, Sudler was
referred for out-patient therapy to Ms. Morris, a licensed clinical social worker. (See id. at 62021) Ms. Morris' progress notes indicate that Plaintiff suffered from bipolar I disorder and
insomnia. (See, e.g., id. at 466, 476) Her notes suggest that Plaintiff improved on medication
and that his attention and concentration were intact despite the effects of depression and anxiety.
(See, e.g., id. at 478, 500) For example, on May 23, 2013, Ms. Morris indicated that Sudler was
"feeling much better" on medication, but was sometimes experiencing periods of hypersomnia.

(Id. at 570) She also noted that Sudler's medications "can be sedative" as a side effect. (Id.)
After his May 2013 hospital stay, Plaintiff also began to see Dr. Mukhtar, who noted that
Plaintiff has bipolar disorder. (See id. at 737-39) On several occasions, Dr. Mukhtar's notes
indicate that Plaintiff reported prolonged periods of sleeping or sleep disturbances. (See, e.g., id.
at 709, 730, 734) In February 2014, Dr. Mukhtar recommended that Plaintiff undergo
electroconvulsive therapy, as Dr. Mukhtar thought Sudler showed signs of medication resistance.
(See id. at 695) Dr. Mukhtar's notes from June 2014 indicate that Sudler had not been cleared
for electroconvulsive therapy for cardiac reasons. (See id. at 689)

c.

Cardiology Testing

As a result of Dr. Mukhtar's referral for electroconvulsive therapy, Sudler underwent a
cardiac exam. Plaintiffs cardiologist, Dr. Horjinder Grewal, performed a echocardiogram on
May 19, 2014, which showed severely reduced systolic function with an ejection fraction of 30%,

4

a reversed E/A ratio, and severe global hypokinesis of the left ventricle. (See id. at 748) Dr.
Grewal then performed additional testing - left and right heart catheterizations, selective
coronary angiography, left ventriculography, and right lower leg angiography- on June 13, 2014,
which also showed "severely reduced left ventricular systolic function with an ejection of 30
percent." (Id. at 744-45) At the hearing before the ALJ, Sudler's counsel stated that additional
follow-up was needed on these tests. (See id. at 54)

3.

Medical Opinion Evidence

Plaintiff submitted two opinions from treating providers: cardiologist Dr. Grewal and
therapist Ms. Morris. (See id. at 541, 740-43) Sudler was also assessed by several non-treating
medical and psychiatric consultants. (See id. at 39-41)

a.

Treating Providers' Opinions

In a letter dated November 8, 2013, Ms. Morris wrote that she had been working with

Plaintiff since May of 2012 for bipolar I disorder with episodic depression, anxiety, and trauma.
(See id. at 541) Ms. Morris stated that Plaintiff incurred four hospitalizations, each lasting at

least two weeks, and she described his current mental health as "very unpredictable." (Id.) She
opined that "active gainful employment with stringent attendance requirement[s] as well as
increased stress may prove to be counterproductive in his strive for symptomatic control." (Id.)
In a physical residual functional capacity questionnaire filled out on July 7, 2014, Dr.

Grewal identified Sudler as having idiopathic cardiomyopathy causing fatigue with impairment
lasting or expected to last in excess of 12 months. (See id. at 740) Dr. Grewal stated that
Plaintiff needs a life vest and beta blockers and that Plaintiffs depression contributes to his
condition. (See id.) Dr. Grewal did not estimate Sudler' s functional limitations but stated that
5

Plaintiff is "disabled." (See id. at 741-42) Dr. Grewal concluded that Sudler is incapable of
performing even low-stress work and that he would be absent "everyday." (Id. at 741, 743)

b.

Consultations with Non-Treating Physicians

Sudler underwent a number of consultative evaluations, including by Drs. Ephraim
Ayoola and Joseph Keyes in July 2012. (See id. at 421-33) Following a physical examination,
Dr. Ayoola found Plaintiff had a normal gait, normal dexterity, normal grip, and normal motor
power and strength. (See id. at 424) A heart examination found no gallops or murmurs, no
heave or thrill, and detected first and second heart sounds. (See id. at 423) Dr. Ayoola
concluded that Plaintiff had the ability to sit or stand 3 to 4 hours at a time during a normal 8hour workday and can lift and carry 25 pounds. (See id. at 424)
Dr. Keyes performed a clinical psychological evaluation of Sudler. (See id. at 429) Dr.
Keyes found mild attention disturbance but a normal mental alertness with clear and organized
thinking. (See id. at 430-31) Dr. Keyes diagnosed Sudler with major depressive disorder. (See
id. at 432) Dr. Keyes noted mild limitations in the ability to relate to others on a daily basis and

restriction of daily activities, no limitation in understanding or carrying out simple instructions,
and moderate limitations in coping with work pressures and sustaining performance and
attendance in a normal work setting. (See id. at 434-35)
Plaintiff received additional assessments from Drs. Francis Murphy, David Hutz, Darrin
Campo, and Christopher King between July 2012 and April 2013. (See id. at 40) These doctors
consistently concluded that Sudler has no more than moderate work restrictions due to his
impairments. (See id.) All of the non-treating physicians evaluated Sudler before he was
diagnosed with a heart condition. (See id. at 39-41)
6

4.

The ALJ's Findings

The ALJ made the following findings in his October 1, 2014 decision:
1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2015.

2.

The claimant has not engaged in substantial gainful activity since
April 1, 2012, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.)

3.

The claimant has the following severe impairments: major
depressive disorder; depression; status HIV positive; bipolar
disorder; anxiety disorder; impulse control disorder; cluster C
personality disorder traits; obesity; a heart disorder; and renal
inefficiency (20 CFR 404.1520(c) and 416.920(c)).

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925,
and 416.926).

5.

After careful consideration of the entire record, [the ALJ] find[s]
that the claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except the work must be unskilled, with a reasoning level of 1 or 2;
no interaction with the general public; no more than occasional
postural activity; no more than occasional pushing or pulling with
the bilateral lower extremities and the bilateral upper extremities;
no more than occasional overhead reaching with the bilateral upper
extremities; no more than occasional exposure to atmospheric
irritants, such as dust, fumes, odors, gases; no exposure to
temperature extremes, wetness, or high humidity; and no exposure
to more than a "moderate" noise intensity level as described in the
Selected Characteristics of Occupations.

6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416. 965).

7.

The claimant was born on May 26, 1978 and was 33 years old,
which is defined as a younger individual age 18-44, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
7

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).

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 8241 and 20 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 I, 2012, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. at 28-44) In making these findings, the ALJ afforded little weight to the opinions of Dr.
Grewal and Ms. Morris. (See id. at 39, 41) With respect to non-treating sources, the ALJ
awarded significant weight to the opinions of Drs. Keyes, Murphy, and King (see id. at 40) and
only limited weight to the opinions of Drs. Campo, Hutz, and Ayoola, as the latter physicians'
assessments of Sudler's physical abilities did not reflect his recently diagnosed heart condition
(see id. at 40-41). The ALJ also did not find Sudler's testimony on the intensity, persistence, and
limiting effects of his impairments to be entirely credible. (See id. at 34)
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 entitled to judgment as a matter oflaw." 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. Co. v. Zenith Radio Corp., 415 U.S. 574, 586

8

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 party cannot produce admissible evidence to
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 specific facts showing that there is a genuine issue
for trial." Matsushita, 415 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 Podohnik v. US. 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 existence 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., 411 U.S. 242,
24 7-48 ( 1986). "If the evidence is merely colorable, or is not significantly probative, summary
9

judgment may be granted." Id. at 249-50 (internal citations omitted); see also Celotex Corp. v.

Catrett, 411 U.S. 317, 322 (1986) (stating entry of summary judgment is mandated "against a
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 the burden of proof at trial").
B.

Review of the ALJ's Findings

The Court must uphold the Commissioner's factual decisions if they are supported by
"substantial evidence." See 42 U.S.C. §§ 405(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). 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 nova 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 ALI. See Matthews v. Apfel, 239 F.3d 589, 593-95
(3d Cir. 2001 ). However, evidence that was not submitted to the ALI 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 ALI 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 marks omitted).

10

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.
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. 1983 ). Even if the 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

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. See 42 U.S.C. § 1382(a). A "disability" is defined for purposes of SSI and DIB as
the 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. § 1382c(a)(3). A claimant is disabled "only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but cannot,

11

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. § 1382c(a)(l)(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 CFR § 416.920; see also Russo v. Astrue, 421 F. App'x
184, 188 (3d Cir. Mar. 21, 2011 ). If a finding of disability or non-disability can be made at any
point in the sequential process, the Commissioner will not review the claim further. See 20
C.F.R. § 416.920(a)(4).
At step one, the Commissioner must determine whether the claimant is engaged in any
substantial gainful activity. See 20 C.F.R. § 416.920(a)(4)(i) (mandating finding of
non-disability 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 CFR § 416.920(a)(4)(ii) (mandating finding of non-disability when claimant's
impairments are not severe). If the claimant's impairments are 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. § 416.920(a)(4)(iii). When a claimant's
impairment or its equivalent matches an impairment in the listing, the claimant is presumed
disabled. See id. If a 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.
§ 416.920(e).
At step four, the Commissioner determines whether the claimant retains the residual

12

functional capacity to perform her past relevant work. See 20 C.F .R. § 4 l 6.920(a)(4)(iv) (stating
claimant is not disabled if able to return to past relevant work). A claimant's residual functional
capacity is "that which an 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). "The claimant bears the
burden of demonstrating an inability to return to her past relevant work." Plummer v. Apfel, 186
F .3d 422, 428 (3d Cir. 1999) (internal citation omitted).
If the claimant is unable to return to her past relevant work, step five requires the
Commissioner to determine whether the claimant's impairments preclude her from adjusting to
any other available work. See 20 C.F.R. § 416.920(a)(4)(v) (mandating finding of non-disability
when claimant can adjust to other work); see also 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 id. In other words, the Commissioner
must prove that "there are other jobs existing in significant numbers in the national economy
which the claimant can perform, consistent with [her] medical impairments, age, education, past
work experience, and residual functional capacity." Id. In making this determination, the ALJ
must analyze the cumulative effect of all of the claimant's impairments. See id. At this step, the
ALJ often seeks the assistance of a vocational expert. See id.
B.

The Issues Raised on Appeal

Sudler contends that the ALI ( 1) failed to adequately consider evidence of drowsiness,
fatigue, and hypersomnia; (2) failed to accord adequate weight to the opinions of Plaintiffs
treating cardiologist and therapist; and (3) failed to obtain a medical expert opinion when
assessing Plaintiffs cardiomyopathy.

13

1.

The ALJ Adequately Considered Evidence
of Drowsiness, Fatigue, and Hypersomnia

Sudler first argues that the ALJ failed to fully consider his symptoms of fatigue,
drowsiness, and hypersomnia. (See D.I. 11 at 11) Specifically, Sudler contends that the ALJ
failed to consider these as symptoms of depression and cardiomyopathy, as opposed to merely
side effects of medications. (See id. at 12-13)
When evaluating subjective symptoms like fatigue, regulations require (1) objective
evidence of a medically determinable impairment that could reasonably be expected to produce
the symptoms alleged, followed by (2) an evaluation of the intensity and persistence of the pain
or symptoms and the extent to which it affects the individual's ability to work. See 20 C.F .R.
§§ 404.1529, 416.929.
On the first point, the ALJ detailed Sudler's impairments and symptoms, including his
testimony "that he spends most of his time in bed," is "too tired and lethargic to engage in prior
activities," and suffers from "constant fatigue" and "sleep disturbance." (Tr. at 34) The ALJ
then determined that Sudler's medically-determinable impairments - "RN/AIDS, a heart
condition, bipolar disorder, depression, and a mood disorder" - could reasonably be expected to
cause the alleged symptoms. (Id.) The ALJ also recognized that fatigue is a physical side effect
of Sudler's medications. (See id. at 35) Accordingly, the ALJ considered fatigue to be both a
result of Sudler's impairments and a side effect of his medications. That the ALJ did not analyze
fatigue caused by depression or heart disease separately from fatigue caused by medications does
not suggest that the ALJ did not fully consider Sudler's fatigue symptoms.
The ALJ then explained his finding that Sudler's statements concerning the intensity,

14

persistence, and limiting effects of his symptoms were not entirely credible. (See id. at 34) An
ALJ's credibility determinations are generally entitled to great deference, see Gonzalez, 537 F.
Supp. 2d at 665, and the Court sees no reason to disturb the ALJ's findings here. The ALJ,
considering the record as a whole, and having observed Sudler testify, found that Sudler
demonstrates no more than moderate limitations from fatigue. (See Tr. at 32) Substantial
evidence supports this finding. The ALJ described Sudler's treatment records, and found that
they focus primarily on his mental issues and medication side effects, such as fatigue. (See id. at
35) Specifically, the ALJ discussed medical records from numerous doctors, which included
Sudler's reports of ongoing sleeping problems. (See id. at 37-38) The ALJ, however, found that
these medical records suggest that Sudler is only moderately limited. (See id. at 32) For
example, Ms. Morris' notes indicate that, despite reports of sleeping issues, Sudler had intact
memory, attention, and concentration. (See, e.g., id. at 500) The ALJ described Ms. Morris'
notes from 2013, which reported that Sudler had improved sleep, was exercising, and had taken a
trip to Philadelphia. (See id. at 37, citing id. at 469, 609) The ALJ also cited records from Drs.
Mukhtar, King, and Keyes, who each noted that the Plaintiff appeared to be self-sufficient and
independent in his personal life. (See id. at 37-39) Further, the ALJ discussed Sudler's
testimony that he continues to drive a car, which demonstrates "concentration and persistence."
(Id. at 42)
Regardless of the alleged source of fatigue, 2 the ALJ fully considered Sudler's reported
symptoms of fatigue and sleep issues, and adequately explained why the evidence supports his

2

Notably, Sudler testified that his medications caused the drowsiness and fatigue. (See
Tr. at 64-66, 76)

15

findings. The ALI determined that the medical assessments are consistent with one another and
show that Sudler has no more than moderate limitations. In limiting Sudler's residual functional
capacity to unskilled work with a maximum reasoning level of 1 or 2, the ALJ accounted for
these symptoms.
Accordingly, the Court finds no reversible error with respect to Plaintiffs first issue on
appeal.

2.

The ALJ Did Not Err in Weighing Opinions of Treating Providers

Sudler next argues that the ALI erred in discounting opinions from treating providers Dr.
Grewal and Ms. Morris. (See D.I. 11 at 14-18)
The Third Circuit subscribes to the "treating physician doctrine." See Mason v. Shala/a,
994 F.2d 1058, 1067 (3d Cir. 1993). According to this rule, a treating physician's opinion is
accorded "controlling weight" if it is "well-supported by medically acceptable clinical and
laboratory diagnostic techniques and it is not inconsistent with the other substantial evidence in
the record." Fargnoli, 247 F.3d at 43. "A cardinal principle guiding disability eligibility
determinations is that the ALI 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." Plummer, 186 F.3d at 429 (internal citation
omitted).
When there is medical evidence contradicting the treating physician's view, the ALI must
carefully evaluate how much weight to accord the treating physician. See Gonzalez, 537 F. Supp.
2d at 660; Barnhill v. Astrue, 794 F. Supp. 2d 503, 515 (D. Del. 2011). If a treating physician's
opinion is not given controlling weight, the ALI should consider numerous factors in
16

determining the weight to give it, including: the length, nature, and extent of the treatment
relationship; the frequency of examination; the amount of medical evidence offered in support of
the opinion; the consistency of the opinion with the record as a whole; and the specialization of
the treating physician. See 20 C.F.R. §§ 416.1527(c)(2)-(6); see also Social Security Rule 96-2p,
1996 WL 374188, at *5.

In reviewing the ALJ's analysis, it is not for the Court to re-weigh the medical opinions in
the record. See Gonzalez, 537 F. Supp. 2d at 659. Rather, the Court must determine whether
substantial evidence exists to support the ALJ's weighing of those opinions. See id.

a.

Substantial Evidence Supports the ALJ's
Weighing of Ms. Morris' Opinion

The ALJ afforded less weight to the opinion of Sudler' s therapist, Ms. Morris, than to the
assessments of Dr. Mukhtar, a treating psychiatrist. (See Tr. at 39) Substantial evidence
supports the ALJ's weighing of Ms. Morris' opinion.
As a preliminary matter, the ALJ concluded that Ms. Morris, as a licensed clinical social
worker, did not provide "the opinion of an acceptable medical source," and therefore her opinion
does not come within the purview of the treating physician doctrine. (Id. at 39) Generally, the
treating physician doctrine includes "physicians and psychologists or other acceptable medical
sources." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). The applicable regulations do not list a
social worker as an acceptable medical source. See 20 C.F.R. § 404.1513(a), 416.913(a) (listing
acceptable medical sources); see also Emery v. Colvin, 2015 WL 4770551, at *3 (E.D. Pa. Aug.
11, 2015).
Furthermore, the ALJ found inconsistencies between Ms. Morris' opinion, on the one

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hand, and her previously-recorded observations of Sudler and other evidence in the record, on the
other hand. (See Tr. at 39) Specifically, Ms. Morris' opinion stated that each of Sudler' s four
hospitalizations exceeded two weeks, but his hospitalization records show only one in-patient
stay approaching two weeks, with the other three being one week or less. (See id. at 541)
Additionally, Ms. Morris opined that Plaintiffs mental status is "very unpredictable" and any
employment would prove counterproductive for his treatment. (See id.) Yet the ALJ pointed to
prior medical assessments by Ms. Morris where she stated that Plaintiff was "sleeping better,
exercising, spending time with his daughter, and trying to get into a vocational rehabilitation
program," and overall was exhibiting an improved mood with better sleeping habits. (See id. at
37-38) The ALJ also found Dr. Mukhtar's medical assessments to be consistent with Ms.
Morris' notes, further supporting that Ms. Morris' opinion is inconsistent with substantial
evidence of record. (See id. at 39)
Sudler also contends that the ALJ impermissibly relied on Global Assessment of
Functioning ("GAF") scores to discount Ms. Morris' opinion. Although the American
Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders no longer uses
GAF scores (see id. at 36 n.1 ), the Social Security Administration allows GAF scores to be used
as opinion evidence. See Siple v. Colvin, 2017 WL 58955, at *7 (D. Del. Jan. 5, 2017). The
Court finds no error in the ALJ's use of GAF scores as further evidence of inconsistencies
between Ms. Morris' opinion and the record.
Accordingly, the ALJ did not err in awarding little weight to Ms. Morris' opinion.

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b.

Substantial Evidence Supports the ALJ's
Weighing of Dr. Grewal's Opinion

Substantial evidence also supports the ALJ's decision to give little weight to Dr. Grewal's
opinion. Dr. Grewal' s opinion consists of a questionnaire, identifying that Sudler has idiopathic
cardiomyopathy. (See Tr. at 740-43)
The ALJ found that Dr. Grewal' s opinion, despite being that of a treating physician, was
neither well-supported by medically-acceptable evidence nor consistent with substantial evidence
ofrecord. (See id. at 41) In particular, the ALJ noted that Dr. Grewal's diagnosis did not occur
until mid-2014, shortly before the date of the hearing. The ALJ indicated that the diagnosis was
very recent, with Sudler continuing to undergo testing to determine the extent and nature of his
heart condition. (See id.; see also id. at 54-55) Thus, the ALJ found that Dr. Grewal's opinion
about the extent and duration of Sudler's impairments and symptoms resulting from the heart
condition was not yet well supported by medically-acceptable evidence, given that the condition
had yet to be fully diagnosed.
The Court finds no error in the ALJ' s analysis. While Dr. Grewal had performed some
testing on Sudler, he offered very little explanation for his opinion and no explanation for why
Sudler's initial test results indicate that his impairments can be expected to last at least 12
months. (See Tr. at 740) An ALJ is permitted- as he did here - to give less weight to a
conclusory opinion of a treating physician. See Prokopick v. Comm 'r of Soc. Sec., 272 F. App'x
196, 199 (3d Cir. 2008); Mason, 994 F.2d at 1065; Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir.
1991 ). Therefore, although there is no contrary evidence in the record about the likely duration
of Sudler' s heart condition, the ALJ did not err in discounting Dr. Grewal' s opinion on the

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matter. See Plummer, 186 F.3d at 429 ("An ALJ may reject a treating physician's opinion
outright only on the basis of contradictory medical evidence, but may afford a treating
physician's opinion more or less weight depending upon the extent to which supporting
explanations are provided.").
The ALJ also found inconsistencies between Dr. Grewal' s opinion and other substantial
evidence in the record. Dr. Grewal's opinion did not assess Sudler's functional limitations, such
as sitting, standing, or exertional abilities, but simply concluded that Sudler is disabled due to his
heart condition. (See Tr. at 41, describing id. at 740-43) The ALJ found this conclusion
inconsistent with the physical abilities evinced by Sudler's testimony, such as living
independently, caring for his daughter on weekends, and driving a car. (See id. at 41) Thus,
while not discounting Sudler's diagnosis of a heart condition, the ALJ gave little weight to Dr.
Grewal's opinion, in light of the incomplete diagnosis as well as record evidence suggesting that
Sudler retains greater functionality than identified by Dr. Grewal.
Accordingly, the Court finds no error in the ALJ's assigning little weight to Dr. Grewal's
opm10n.

3.

Additional Evidence on Sudler's Heart Condition is Needed

Finally, Sudler contends that the ALJ erred in failing to seek a Commission-designated
medical expert opinion on his heart condition before finding that the condition does not meet the
severity requirements of cardiomyopathy under listing 4.02.
"ALJs have a duty to develop a full and fair record in social security cases. Accordingly,
an ALJ must secure relevant information regarding a claimant's entitlement to social security
benefits." Ventura v. Shala la, 55 F .3d 900, 902 (3d Cir. 1995) (internal citations omitted). This

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is so even though the claimant bears the burden to prove his disability. See Hess v. Sec '.Y of
Health, Ed. & Welfare, 497 F.2d 837, 840 (3d Cir. 1974).

Here, despite Sudler's diagnosis of idiopathic cardiomyopathy shortly before the hearing,
the ALJ did not request updated reports from the appointed medical consultants. Although
"there is no requirement that an ALJ must always receive an updated report from the State
medical experts whenever new medical evidence is available," an ALJ "is required to obtain an
updated report whenever 'additional medical evidence is received that in the opinion of the
administrative law judge ... may change the State agency medical ... consultant's finding that
the impairment( s) is not equivalent in severity to any impairment in the Listing of Impairments."'
Wilson v. Astrue, 331 F. App'x 917, 919 (3d Cir. 2009) (quoting SSR 96-6p, 1996 WL 374180,

at *4).
The Commissioner contends that the ALJ concluded that the new evidence of Sudler's
heart condition would not have changed the medical experts' opinions. (See D.I. 15 at 15-16)
The Court disagrees. The ALJ's opinion does not expressly address whether it is necessary to
request updated reports on the basis of Sudler' s newly-diagnosed heart condition. The ALJ
nowhere concludes that the new evidence could not change the opinion of the consulting experts
or that no reasonable expert could conclude that Sudler's impairments, when considered in light
of the new evidence, are equivalent to listed impairments. See Simon v. Astrue, 2010 WL
4269607, at *3 (E.D. Pa. Oct. 28, 2010). The lack of clarity about the ALJ' s findings on this
point alone may be sufficient reason to remand for further proceedings. See Cotter v. Harris, 642
F.2d 700, 705 (3d Cir. 1981). New evidence only sometimes requires updated expert opinions,
and without some explanation of the ALJ's view on the matter, the Court's review of the

21

decision is difficult.
Further, to the extent that the ALJ did address the impact of the new diagnosis on the
medical consultants' reports, that analysis suggests that the ALJ believed that the new evidence
may change their opinions. The ALJ gave "only limited weight" to several opinions about
Sudler's physical limitations, explaining that "they d[id] not reflect the claimants's more recent
cardiac condition." (Tr. at 41) That is, the ALl implicitly acknowledged that these opinions may
have changed due to the new heart condition, thus indicating that in the circumstances here, it is
necessary to further develop the record.
Finally, despite the Commissioner's protestations to the contrary, this is not a case that is
so clear that a remand is unnecessary. The testing Sudler supplied at the time of his hearing
suggests that his ejection fraction·measurements were approximately in the range of listing 4.02,
which requires "left ventricular end diastolic dimensions greater than 6.0 cm or ejection fraction
of 30 percent or less." 20 C.F.R. Part 404, Subpart P, Appendix 1, 4.02. Sudler's May 2014
testing indicated that the ejection fraction was 30% (see id. at 748), and subsequent testing in
June 2014 also showed an estimated ejection fraction of 30% (see id. at 745). Additionally, the
only evidence ofrecord, although discounted as discussed above, states that Sudler's heart
condition is expected to persist for more than 12 months. (See id. at 740) Taken together, these
tests and Dr. Grewal's opinion suggest that there is a reasonable question regarding the severity
and expected persistence of Sudler's heart condition for a consultant to address. Cf Cordovi v.
Barnhart, 2005 WL 3441222, at *3 (E.D. Pa. Dec. 14, 2005).

Accordingly, the Court determines that a remand to the ALJ for further proceedings is
warranted. Given that some time has now passed since Sudler was diagnosed with heart disease,

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the ALJ may also find it appropriate to take additional evidence from his treating cardiologist.

See Cotter, 642 F.2d at 707.

V.

CONCLUSION
For the foregoing reasons, the Court will grant in part and deny in part the motions for

summary judgment and remand for further proceedings consistent with this opinion. An
appropriate Order follows.

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