Butts v. Commissioner of Social Security

Filing 19

MEMORANDUM-DECISION & ORDER that pltf's motion for judgment on the pleadings (Dkt. No. 14) is GRANTED; that deft's motion for judgment on the pleadings (Dkt. No. 18) is DENIED; and that deft's decision denying pltf disability benefits is REMANDED, pursuant to Sentence Four of 42 U.S.C. 405(g) for proceedings consistent with this Memorandum-Decision & Order. Signed by Magistrate Judge Christian F. Hummel on 1/11/2018. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
GARY R. BUTTS, JR.,
Plaintiff,

3:16-CV-874
(CFH)

v.

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

LAW OFFICES OF STEVEN R. DOLSON
Counsel for Plaintiff
126 North Salina Street, Suite 3B
Syracuse, New York 13202
Attorneys for plaintiff

STEVEN R. DOLSON, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, New York 10278
Attorneys for defendant

PRASHANT TAMASKAR, ESQ.

CHRISTIAN F. HUMMEL
United States Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Currently 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

1

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.

I.

BACKGROUND
A.

Facts

Plaintiff 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. 1 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.

B.

Procedural History

Plaintiff 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. at 1-4.

1

The Administrative Transcript is found at Dkt. No. 11. Citations to the Administrative Transcript
will be referenced as “T.” and the Bates-stamped page numbers as set forth therein will be used rather
than the page numbers assigned by the Court’s CM/ECF electronic filing system.

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C.

The ALJ’s Decision

Generally, 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. 2 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 eighthour 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,
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Though the ALJ’s decision twice indicates December 31, 2018 as Plaintiff’s date last insured, elsewhere
in the record Plaintiff’s date last insured is listed as December 31, 2017. T. 13, 15, 81, 93, 233, 281. It is
unclear whether the ALJ’s finding contains a typographical error for this date.

3

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 crawl.
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 disabled.

D.
1.

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 PerkinsMwantuali, 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.
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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.
Second, 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. 3 Id.
Third, 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

3

The Court notes that Dr. Wiley did not date the opinion at Exhibit 25F, but the Court Transcript Index
notes the date of this opinion as April 23, 2015. T. 652. Further, this opinion and Dr. Wiley’s treatment
notes at Exhibit 26F indicate that the most recent examination by Dr. Wiley was on April 23, 2015. Id. at
646-52, 653-55.

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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 failed
to provide a specific, accurate discussion of his credibility which ultimately prevents
meaningful review because the ALJ did not fully explain how she formulated her
decision. Id. at 15.
Fourth, Plaintiff argues that the ALJ committed reversible error by issuing an
unfavorable decision based on an unsupported RFC. Pl.’s Mem. of Law at 15-16.
Specifically, Plaintiff argues that the evidentiary basis for RFC limitations regarding
occasional overhead reaching and frequent reaching in all other directions is unclear.
Id. at 15. Plaintiff argues that, although the ALJ purportedly based the RFC on the
opinions of Dr. Perkins-Mwantuali and Marco Berard, M.D., Dr. Berard did not reach a
conclusion as to Plaintiff’s ability to reach, and Dr. Perkins-Mwantuali opined a marked
limitation for reaching. Id. at 15-16. Plaintiff notes that Dr. Perkins-Mwantuali did not
differentiate between Plaintiff’s ability to reach overhead and his ability to reach in other
directions. Id. Plaintiff also argues that the ALJ failed to specify the evidence that she
relied on when assigning reaching limitations to Plaintiff that are less restrictive than
those contained in Dr. Perkins-Mwantuali’s opinion, despite affording that opinion great
weight. Id. at 16. Plaintiff contends that there is no evidentiary basis for the ALJ’s
distinction between occasional overhead reaching and frequent reaching in all other
directions since Dr. Perkins-Mwantuali did not distinguish between those types of
reaching. Id.

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2.

Defendant’s Motion for Judgment on the Pleadings

Generally, Defendant makes four arguments in support of her motion for
judgment on the pleadings. Dkt. No. 18, at 7-16 (Def.’s Mem. of Law). First, Defendant
argues that the ALJ properly weighed Dr. Wiley’s opinion. Id. at 7-11. Specifically,
Defendant argues that the ALJ appropriately declined to afford controlling weight to Dr.
Wiley’s opinion because it was inconsistent with other substantial evidence of record
(including Dr. Berard’s opinion) and because parts of Dr. Wiley’s opinion were not
supported by medically acceptable clinical and laboratory diagnostic techniques. Id. at
7. Defendant further argues that Dr. Berard’s opinion that Plaintiff could effectively
perform sedentary work directly contradicts Dr. Wiley’s opinion, and that the other
opinion evidence in the record also contradicts Dr. Wiley’s findings, including Dr.
Perkins-Mwantuali’s finding of no sitting limitations. Id. at 7-8.
Defendant also argues that, although Dr. Perkins-Mwantuali found marked
restrictions for walking and standing, the Commissioner’s standard interpretation of
marked limitations would not preclude sedentary work based on either of these
activities. Def.’s Mem. of Law at 8. Defendant also argues that the ALJ afforded some
weight to the January 24, 2013, opinion of orthopedic surgeon Bradley D. Wiener, M.D.,
which did not identify any sitting, standing, or walking limitations. Id. Defendant
contends that none of the other medical opinions in the record identified limitations that
would wholly preclude sedentary work as Dr. Wiley found, indicating her opinion was
therefore inconsistent with other substantial evidence and not entitled to controlling
weight. Id. Defendant also argues that the ALJ noted that aspects of Dr. Wiley’s
opinion, particularly her findings on absences and the need to recline, were

7

unexplained; thus, they were not supported by medically-acceptable clinical and
laboratory diagnostic techniques. Id. at 9.
Defendant also argues that the regulations require only that an ALJ re-contact a
treating physician when there is insufficient evidence to assess the claimant’s condition,
and that follow up with Dr. Wiley was unnecessary because the ALJ already had a
complete medical history and there were no obvious gaps in the administrative record.
Def.’s Mem. of Law at 9. Defendant also argues that, even if Dr. Wiley provided a
persuasive and thorough explanation for her findings, the ALJ still would not have
accorded her opinion controlling weight because it was inconsistent with other
substantial evidence, and that the ALJ was, therefore, not required to re-contact her. Id.
Defendant contends that the ALJ needed to only consider the factors listed in 20
C.F.R. § 404.1527(c) to properly assess the opinions because Dr. Wiley’s treating
opinion was not entitled to controlling weight. Def.’s Mem. of Law at 9-10. Defendant
argues that the ALJ appropriately considered the relevant factors when weighing this
opinion. Id. at 10. Defendant argues that the ALJ found that the length of the treatment
relationship did not outweigh the fact that Dr. Wiley was not an orthopedic specialist. Id.
Defendant argues that the ALJ considered the nature of the treatment relationship -including number of visits -- but found that it did not outweigh other factors. Id.
Second, Defendant argues that evidence submitted to the Appeals Council was
not material. Def.’s Mem. of Law at 11-13. Specifically, Defendant argues that,
although Dr. Wiley’s June 17, 2015, opinion was new, it was not material because it did
not render the ALJ’s conclusion contrary to the weight of the evidence in the record.
Def.’s Mem. of Law at 12. Defendant argues that Dr. Wiley opined on an issue reserved

8

to the Commissioner and such a statement is not a medical opinion entitled to any
special significance. Id. Defendant argues that this opinion did not alter the balance of
the evidence because it did not remedy the weaknesses identified by the ALJ regarding
Dr. Wiley’s previous opinion or contain any new information about Dr. Wiley’s
perception of Plaintiff’s condition. Id. at 12-13.
Third, Defendant argues that the ALJ properly assessed Plaintiff’s credibility.
Def.’s Mem. of Law at 13-15. Specifically, Defendant argues that the ALJ properly
applied 20 C.F.R. § 404.1529(c)(3) when concluding that Plaintiff’s allegations of
disability were not entirely credible. Id. at 14. Defendant argues that the ALJ accurately
noted that diagnostic imaging showed only minor degenerative changes and that the
ALJ considered the treatment Plaintiff received (including conservative treatment of his
back pain involving right thoracic radiofrequency ablation -- and without surgery -- as
well as ankle fusion surgery that worked well), whether the treatment improved his
symptoms, and Plaintiff’s ability to participate in a variety of daily activities. Id.
Defendant argues that, in doing so, the ALJ applied the relevant credibility factors and
identified specific-record based reasons for her ruling such that the ALJ’s rationale can
be gleaned from her decision. Id. at 14-15.
Fourth, Defendant argues that the ALJ’s RFC, particularly with respect to
reaching limitations, is supported by substantial evidence. Def.’s Mem. of Law at 15-16.
Specifically, Defendant argues that the ALJ balanced Dr. Berard’s findings of no
reaching limitations with Dr. Perkins-Mwantuali’s opined marked limitations and
reasonably found that Plaintiff could reach overhead frequently. Id. Defendant also
argues that the ALJ accounted for Dr. Perkins-Mwantuali’s finding that Plaintiff had

9

marked limitations in carrying above the shoulder, an activity that requires many of the
same movements as reaching overhead. Id. at 16.

II.

RELEVANT LEGAL STANDARD
A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health &
Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s
determination will be reversed only if the correct legal standards were not applied, or it
was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987) (“Where there is a reasonable basis for doubt whether the ALJ applied
correct legal principles, application of the substantial evidence standard to uphold a
finding of no disability creates an unacceptable risk that a claimant will be deprived of
the right to have her disability determination made according to the correct legal
principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v. Califano,
615 F.2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that amounts to
“more than a mere scintilla,” and has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed susceptible to more
than one rational interpretation, the Commissioner’s conclusion must be upheld.
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both

10

sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If
supported by substantial evidence, the Commissioner’s finding must be sustained “even
where substantial evidence may support the plaintiff’s position and despite that the
court’s independent analysis of the evidence may differ from the [Commissioner’s].”
Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court
must afford the Commissioner’s determination considerable deference, and may not
substitute “its own judgment for that of the [Commissioner], even if it might justifiably
have reached a different result upon a de novo review.” Valente v. Sec’y of Health &
Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§
404.1520, 416.920. The Supreme Court has recognized the validity of this sequential
evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step
process is as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not,
the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits his physical or
mental ability to do basic work activities. If the claimant
suffers such an impairment, the third inquiry is whether, based
solely on medical evidence, the claimant has an impairment
which is listed in Appendix 1 of the regulations. If the claimant
has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age,
education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a “listed”
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impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant’s severe
impairment, he has the residual functional capacity to perform
his past work. Finally, if the claimant is unable to perform his
past work, the [Commissioner] then determines whether there
is other work which the claimant could perform. Under the
cases previously discussed, the claimant bears the burden of
the proof as to the first four steps, while the [Commissioner]
must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758
F.3d 146, 150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can
be made, the SSA will not review the claim further.” Barnhart v. Thomas, 540 U.S. 20,
24 (2003).

III.
A.

ANALYSIS

Whether the ALJ Properly Considered the Opinion Evidence

The Second Circuit has long recognized the ‘treating physician rule’ set out in 20
C.F.R. § 404.1527(c). “‘[T]he opinion of a claimant’s treating physician as to the nature
and severity of the impairment is given ‘controlling weight’ so long as it is ‘wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in the case record.’” Greek v.
Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue, 537 F.3d 117, 128
(2d Cir. 2008)). However, there are situations where the treating physician’s opinion is
not entitled to controlling weight, in which case the ALJ must “explicitly consider, inter
alia: (1) the frequency, length, nature, and extent of treatment; (2) the amount of
medical evidence supporting the opinion; (3) the consistency of the opinion with the
remaining medical evidence; and (4) whether the physician is a specialist.’” Greek, 802
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F.3d at 375 (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)). However,
“[w]here an ALJ’s reasoning and adherence to the Regulations is clear, she is not
required to explicitly go through each and every factor of the Regulation.” Blinkovitch v.
Comm’r of Soc. Sec., 15-CV-1196 (GTS/WBC), 2017 WL 782979, at *4 (N.D.N.Y. Jan.
23, 2017), Report and Recommendation adopted by 2017 WL 782901 (N.D.N.Y. Feb.
28, 2017)) (citing Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013) (summary
order)). After considering these factors, “the ALJ must ‘comprehensively set forth [his]
reasons for the weight assigned to a treating physician’s opinion.’” Greek, 802 F.3d at
375 (quoting Burgess, 537 F.3d at 129). The factors for considering opinions from nontreating medical sources are the same as those for assessing treating sources, with the
consideration of whether the source examined the claimant or not replacing the
consideration of the treatment relationship between the source and the claimant. 20
C.F.R. §§ 404.1527(c)(1)-(6).
Here, the ALJ afforded “great weight” to the opinions of Dr. Berard (who
performed multiple independent medical examinations) and consultative examiner Dr.
Perkins-Mwantuali. T. 18, 21, 476-78, 503-07, 571-78. The ALJ afforded “some
weight” to Dr. Wiener’s opinion (based on an independent medical examination) and
“less weight” to Dr. Wiley’s opinion. Id. at 20, 385-90, 645-52. Regarding Dr. Wiley’s
opinion, the ALJ stated that it was not entitled to more weight because Dr. Wiley is not
an orthopedic surgeon like Dr. Berard, she did not explain why Plaintiff must recline or
why he would miss work three days per month, and her treatment relationship with
Plaintiff -- characterized by the ALJ as every forty-five days for a period of less than
eighteen months -- did not constitute a “significant number of visits” and therefore did

13

“not garner her opinion any additional weight to overcome her lack of orthopedic
expertise.” Id. at 20.
Plaintiff argues that Dr. Wiley’s opinion should have been afforded controlling
weight and that the ALJ did not provide good reasons for assigning less than controlling
weight to Dr. Wiley’s opinion. Pl.’s Mem of Law at 5-9. The Court agrees that the ALJ’s
reasons for discounting the opinion of Plaintiff’s treating physician are insufficient and
therefore finds that remand is required to address this error.
The ALJ’s analysis of Dr. Wiley’s opinion, on its face, considers the factors set
out in 20 C.F.R. § 404.1527(c) including the length of the treatment relationship, number
of visits, and Dr. Wiley’s lack of specialty as an orthopedic specialist. T. 20. However,
nominal consideration of these factors is insufficient where, as here, the ALJ fails to
provide a meaningful analysis from which this Court can determine whether the findings
are supported by substantial evidence. First, the ALJ’s analysis fails to address the true
length of Plaintiff’s treatment with Dr. Wiley. Plaintiff testified that he treated with
primary care physician Dr. Wiley and nurse practitioner (“NP”) Susan Stein. Id. at 59.
Treatment records at Exhibits 2F, 5F, 9F, 23F, and 26F from Susquehanna Family
Practice and UHS Primary Care Oneonta span from February 2011 to April 2015. Id. at
348-68, 376-84, 410-41, 586-98, 653-709. Although Dr. Wiley’s opinion at Exhibit 25F
indicates that she first treated Plaintiff on December 4, 2013, the record indicates she
first cosigned a treatment note from NP Stein on April 7, 2011, which would suggest that
she played a role in Plaintiff’s care at least four years prior to the ALJ’s decision and
would, therefore, be familiar with Plaintiff’s impairments prior to his January 17, 2013,
alleged onset date. Id. at 81, 365. Dr. Wiley cosigned subsequent treatment notes on

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June 21, 2011, August 17, 2011, October 6, 2011, and December 10, 2012. Id. at 354,
358, 361, 378. The ALJ’s analysis of Dr. Wiley’s opinion does not address this earlier
supervisory role in Plaintiff’s treatment. Id. at 20.
Second, although the ALJ indicated that Dr. Wiley did not explain why Plaintiff
must recline or why he would miss work three days per month, Dr. Wiley’s opinion
clearly reflects the diagnosis and assessment of Plaintiff’s thoracic spine and ankle
pain. T. 20, 646-52. For example, Dr. Wiley indicated these impairments would cause
Plaintiff to have “good days” and “bad days,” his symptoms would frequently be severe
enough to interfere with attention and concentration, and these symptoms would likely
increase if Plaintiff was placed in a competitive work environment. Id. at 646, 650, 651.
Additionally, any failure by Dr. Wiley to explicitly indicate the basis for these two specific
limitations does not suggest that Dr. Wiley’s opinion as a whole was entitled to less
weight.
Third, although Dr. Wiley is not an orthopedic specialist like Dr. Berard, neither is
consultative examiner Dr. Perkins-Mwantuali, who specializes in internal medicine and
pediatrics. T. 507. In affording Dr. Perkins-Mwantuali’s opinion great weight despite
her lack of orthopedic specialty, the ALJ inconsistently applies this specialization
distinction when considering the opinion evidence. Id. at 18, 19. Furthermore, the
ALJ’s affordance of weight regarding the opinions of Drs. Wiley and Wiener is
somewhat ambiguous. Id. at 20. The ALJ afforded “some” weight to Dr. Wiener’s
January 15, 2013, opinion while affording “less” weight to Dr. Wiley’s opinion despite
acknowledging that Dr. Wiener noted Plaintiff was still working without restrictions in a
full-time capacity at the time his opinion was rendered. Id. at 20. The lack of a clear

15

explanation of the ALJ’s analysis is troubling in light of the facts that Dr. Wiener’s
opinion is dated prior to Plaintiff’s January 17, 2013 onset date and that it is more
inconsistent with the RFC determination than Dr. Wiley’s opinion. Id. at 81, 385-90.
Finally, the ALJ’s analysis of the opinion evidence fails to address consistencies
between the opinions of Drs. Wiley, Berard, and Perkins-Mwantuali that call into
question Plaintiff’s ability to perform the modified range of sedentary work described in
the ALJ’s RFC. Dr. Wiley opined that Plaintiff needed to sit in a reclined position and
that he could stoop for an hour or less. T. 647-49. Dr. Berard opined that Plaintiff was
not totally disabled and was suitable for light duty work such as a strict sedentary
position with no bending, stooping, or crawling. Id. at 476-78, 571-78. Dr. PerkinsMwantuali opined that Plaintiff had a marked limitation with bending and twisting. Id. at
507. Three medical sources therefore submitted opinions indicating significant
restrictions in Plaintiff’s ability to bend, stoop, and/or twist. This is especially significant
because SSR 96-9p states that occasional stooping is required in most unskilled
sedentary occupations, yet these MEDICAL opinions suggest that plaintiff has a less
than occasional stooping ability. SSR 96-9p, 1996 WL 374185, at *8 (July 2, 1996). In
the RFC, the ALJ restricted Plaintiff to occasional stooping and twisting and clarified that
Dr. Berard’s restrictions regarding bending and stooping were not consistent with the
record as a whole because of Plaintiff’s own testimony regarding his ability to “regularly”
get in and out of a motor vehicle. T. 18, 19. However, when rejecting Dr. Berard’s
bending and stooping limitations, the ALJ failed to assess its consistency with the
limitations opined by Drs. Wiley and Perkins-Mwantuali. Id. at 19. It must also be noted
that the ALJ appears to rely solely on Plaintiff’s testimony to discount these bending and

16

stooping limitations despite her own adverse credibility finding, an inconsistency that
presents another challenge to this Court’s ability to determine whether the ALJ’s
findings are supported by substantial evidence. Id. 19-20.
Much like the ALJ’s reasons for discounting Dr. Wiley’s opinion, the Court finds
that the ALJ’s explanation for declining to adopt Dr. Berard’s opined bending and
stooping restrictions to be insufficient. Plaintiff’s reported ability to get into and out of a
car does not provide substantial evidence on which to discount an opined limitation from
an orthopedic surgeon indicating that plaintiff can perform no bending or stooping -- an
opinion to which the ALJ otherwise afforded great weight and used to discount the
opinion of Plaintiff’s treating physician. Notably, the ALJ fails to cite any medical or
objective evidence supporting her rejection of the stooping and bending limitations.
Because the ALJ did not provide good reasons for discounting limitations opined by Drs.
Wiley and Berard, it is not clear that her analysis of the opinion evidence is supported
by substantial evidence. This error is not harmless because it casts doubt on Plaintiff’s
ability to engage in even the modified range of sedentary worked determined by the
ALJ. Remand is therefore necessary on this basis for appropriate consideration of the
opinion evidence.

B.

Whether the Appeals Council Properly Assessed Post-Decision
Evidence

Because remand is necessary and the Commissioner will be required to consider
this additional evidence when issuing a new decision on remand, the Court declines to
reach a finding regarding whether the Appeals Council properly assessed the postdecision evidence.
17

C.

Whether the ALJ Properly Evaluated Plaintiff’s Credibility

Because remand is necessary and the Commissioner will be required to address
the above-noted deficiencies in evaluating the opinion evidence, she should also
conduct a new credibility determination as part of that review.

D.

Whether the RFC Is Supported by Substantial Evidence

Because remand is necessary and the Commissioner will be required to address
the above-noted deficiencies in considering the opinion evidence when issuing a new
decision, the Court declines to reach a finding regarding Plaintiff’s arguments on the
reaching limitations included in the ALJ’s RFC. Pl.’s Mem of Law at 15-16. However,
on remand, the Commissioner should carefully consider the opined limitations and
provide a sufficiently clear explanation for her analysis of the opinion evidence and the
RFC.

IV. CONCLUSION
ACCORDINGLY, it is hereby
ORDERED, that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 14) is
GRANTED; and it is further
ORDERED, that Defendant’s motion for judgment on the pleadings (Dkt. No. 18)
is DENIED; and it is further

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ORDERED, that Defendant’s decision denying Plaintiff disability benefits is
REMANDED, pursuant to Sentence Four of 42 U.S.C. § 405(g) for proceedings
consistent with this Memorandum-Decision and Order.
IT IS SO ORDERED.
Dated: January 11, 2018
Albany, New York

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