United States District Court, N.D. New York
GARY R. BUTTS, JR., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OFFICES OF STEVEN R. DOLSON STEVEN R. DOLSON, ESQ. Counsel
for Plaintiff Attorneys for plaintiff
SOCIAL SECURITY ADMIN. PRASHANT TAMASKAR, ESQ. OFFICE OF
REG'L GEN. COUNSEL - REGION II Counsel for Defendan
Attorneys for defendant
MEMORANDUM-DECISION AND ORDER
CHRISTIAN F. HUMMEL United States Magistrate Judge
before the Court, in this Social Security action filed by
Gary Butts (“Plaintiff”) against the Commissioner
of Social Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. § 405(g), are
Plaintiff's motion for judgment on the pleadings and
Defendant's motion for judgment on the pleadings. (Dkt.
Nos. 14 and 18.) For the reasons set forth below,
Plaintiff's motion for judgment on the pleadings is
granted, and Defendant's motion for judgment on the
pleadings is denied.
was born in 1972, making him forty years old at the alleged
onset date and forty-three years old at the date of the
ALJ's decision. T. 36. Plaintiff reported obtaining a General
Education Diploma and that he attended vocational school for
small engine repairs. Plaintiff has past work as a
tractor-trailer driver. Id. Generally, Plaintiff
alleges disability due to thoracic back pain, bulging discs
in his spine, diabetes, high blood pressure and cholesterol,
depression, and his left leg being shorter than the right.
applied for Disability Insurance Benefits on October 11,
2013, alleging disability beginning January 17, 2013.
Plaintiff's application was initially denied on December
16, 2013, after which he timely requested a hearing before an
Administrative Law Judge (“ALJ”). T. 96-99, 104.
Plaintiff appeared at a hearing before ALJ Laura Michalec
Olszewski on May 22, 2015. Id. at 30-80. On June 4,
2015, the ALJ issued a written decision finding Plaintiff was
not disabled under the Social Security Act. Id. at
10-29. On June 3, 2016, the Appeals Council denied
Plaintiff's request for review, making the ALJ's
decision the final decision of the Commissioner. Id.
The ALJ's Decision
in her decision, the ALJ made the following seven findings of
fact and conclusions of law. T. 15-23. First, the ALJ found
that Plaintiff meets the insured status requirements of the
Social Security Act through December 31, 2018. Id. at
15. Second, the ALJ found that Plaintiff has not engaged in
substantial gainful activity since January 17, 2013, the
alleged onset date. Id. Third, the ALJ found that
Plaintiff's alleged impairments including degenerative
disc disease (“DDD”) of the thoracic spine,
status post left ankle fusion, and obesity are severe
impairments, while Type I diabetes, high cholesterol, high
blood pressure, and depression are not severe. Id.
at 15. Fourth, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R.
§ 404, Subpart P, App. 1 (the “Listings”).
Id. Specifically, the ALJ considered Listings 1.02
(major dysfunction of a joint), 1.04 (disorders of the
spine), and 12.00 (adult mental disorders). Id.
Fifth, the ALJ found that Plaintiff has the residual
functional capacity (“RFC”) to
lift/carry ten pounds occasionally; sit for six hours in an
eight-hour workday; stand for two hours in an eight-hour
workday; and walk for two hours in an eight-hour workday. The
claimant may sit or stand at his option, meaning he needs the
freedom to alternate from sitting to standing as much or as
little as he deems necessary. The change from one position to
the other does not interrupt the claimant's ability to
remain on task. He can occasionally climb ramps and stairs,
but he should never climb ladders or scaffolds, and he should
not balance. The claimant can occasionally stoop, twist,
push, pull and reach overhead, and he can frequently reach in
all other directions. Finally, he can frequently handle,
finger and feel, although he should never kneel, crouch or
Id. at 18. Sixth, the ALJ found that Plaintiff is
unable to perform any past relevant work. Id. at 21.
Lastly, the ALJ found that there are jobs that exist in
significant numbers in the national economy that Plaintiff
can perform including order clerk (food and beverage),
document preparer, and charge account clerk. Id. at
21-22. The ALJ therefore concluded that Plaintiff is not
The Parties' Briefings on Their Cross-Motions
Plaintiff's Motion for Judgment on the Pleadings
Generally, Plaintiff makes four arguments in support of his
motion for judgment on the pleadings. Dkt. No. 14, at 4-16
(Pl.'s Mem. of Law). First, Plaintiff argues that the ALJ
committed reversible error by failing to apply the treating
physician rule. Id. at 4-9. Specifically, Plaintiff
argues that the opinion of Plaintiff's treating
physician, Jennifer Wiley, M.D., should be afforded
controlling weight for three reasons: (1) Dr. Wiley's
opinion is well-supported by medically acceptable clinical
and laboratory diagnostic techniques including
Plaintiff's treatment for thoracic spine, left leg, and
ankle impairments, two MRIs of the thoracic spine, and an
X-ray of the left ankle; (2) Dr. Wiley's opinion is
consistent with other substantial evidence in the record
including Dr. Wiley's own treatment notes and the
findings of consultative examiner Tanya Perkins-Mwantuali,
M.D.; and (3) Dr. Wiley is in the best position to have
personal knowledge of Plaintiff's limitations as his
treating physician. Id. at 5-7. Plaintiff also
argues that the ALJ did not provide good reasons for
assigning less than controlling weight to Dr. Wiley's
opinion, failed to properly assess the treatment relationship
between Dr. Wiley and Plaintiff, and failed to recontact Dr.
Wiley for clarification regarding any ambiguity in her
opinion. Id. at 7-8. Plaintiff also argues that even
if Dr. Wiley's opinion is not entitled to controlling
weight, the ALJ failed to specifically and appropriately
address the requisite factors in considering Dr. Wiley's
opinion. Id. at 8.
Plaintiff argues that the Appeals Council failed to consider
new and material evidence provided by Plaintiff's
treating physician. Pl.'s Mem. of Law at 9-11.
Specifically, Plaintiff argues that a June 17, 2015, opinion
from Dr. Wiley is new because it did not exist in the file at
the time the ALJ issued her decision on June 4, 2015.
Id. at 10. Plaintiff argues that the opinion is both
material and probative because it is relevant to
Plaintiff's conditions during the time period for which
benefits were denied. Id. Plaintiff notes that Dr.
Wiley's opinion states that Plaintiff is 100 percent
disabled based on impairments diagnosed as of his alleged
onset date and argues that the opinion establishes that these
impairments and resulting limitations existed through the
date of the ALJ's decision. Id. Plaintiff also
argues that, although this opinion touches on the ultimate
issue of disability, which is reserved to the Commissioner,
it serves as additional supporting evidence that the
Commissioner may not ignore. Id.
Plaintiff argues that the ALJ committed reversible error by
failing to assess his credibility properly. Pl.'s Mem. of
Law at 11-15. Specifically, Plaintiff argues that the ALJ
failed to adequately discuss the numerous factors outlined in
20 C.F.R. § 404.1529(c)(3) when making her credibility
determination. Id. at 13. Plaintiff argues that the
ALJ improperly discounted his credibility based on his
conservative treatment and daily activities. Id. at
13-14. Plaintiff also argues that the ALJ improperly
concluded that he is less than credible because he
experienced significant benefit from a right thoracic
radiofrequency nerve ablation. Id. at 14. Plaintiff
contends that the ALJ ...