Oleske v. Commissioner of Social Security

Filing 21

DECISION AND ORDER granting Plaintiff's 9 Motion for Judgment on the Pleadings and denying the Commissioner's 14 Motion for Judgment on the Pleadings: The decision of the Commissioner is vacated, and this matter is remanded for further administrative proceedings consistent with this decision and order. The Clerk of Court is directed to close this case. Signed by Hon. John L. Sinatra, Jr. on 4/2/2020. (KLH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JAMES F. OLESKE,
Plaintiff,
v.

18-CV-74 (JLS)

NANCY BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
DECISION AND ORDER
Plaintiff James F. Oleske brought this action under the Social Security Act,
seeking review of the determination by the Commissioner of Social Security that he
was not disabled. Dkt. 1. Oleske moved for judgment on the pleadings. Dkt. 9.
The Commissioner then responded and cross-moved for judgment on the pleadings.
Dkt. 14. Oleske replied. Dkt. 17.
For the reasons stated below, this Court grants Oleske’s motion and denies
the Commissioner’s cross motion.
PROCEDURAL HISTORY
On June 20, 2014, Oleske applied for Disability Insurance Benefits (“DIB”).
Dkt. 1, ¶ 7. He claimed that he had been disabled since August 23, 2013, due to
chronic pancreatitis, type 2 diabetes mellitus, depressive disorder, anxiety disorder,
bipolar disorder, and memory loss due to anoxic brain damage. Id. ¶¶ 5-6.

On August 15, 2014, Oleske received notice that his application was denied
because he was not disabled under the Social Security Act. Id. ¶ 8. He requested a
hearing before an administrative law judge (“ALJ”), id. ¶ 9, which occurred on
November 10, 2016, id. ¶ 10. The ALJ then issued a decision on December 27, 2016,
confirming the finding that Oleske was not disabled. Id. ¶ 11. Oleske appealed the
ALJ’s decision, and the Appeals Council affirmed the ALJ’s decision on November
14, 2017. Id. ¶ 13. He then commenced this action.
LEGAL STANDARDS
I.

District Court Review
The scope of review of a disability determination involves two levels of

inquiry. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). First, the Court
must “decide whether [the Commissioner] applied the correct legal principles in
making the determination.” Id. The Court’s review for legal error ensures “that the
claimant has had a full hearing under the . . . regulations and in accordance with
the beneficent purposes” of the Social Security Act. See Moran v. Astrue, 569 F.3d
108, 112 (2d Cir. 2009) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)).
Second, the Court “decide[s] whether the determination is supported by ‘substantial
evidence.’” Johnson, 817 F.2d at 985 (quoting 42 U.S.C. § 405(g)).
“Substantial evidence” is “more than a mere scintilla” and “means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotations
and citations omitted). The Court does not “determine de novo whether [the
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claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (internal
quotations and citations omitted). But “the deferential standard of review for
substantial evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003). Indeed, if “a reasonable basis
for doubt whether the ALJ applied correct legal principles” exists, applying the
substantial evidence standard to uphold a finding that the claimant was not
disabled “creates an unacceptable risk that a claimant will be deprived of the right
to have her disability determination made according to correct legal principles.”
Johnson, 817 F.2d at 986.

II.

Disability Determination
ALJs follow a five-step process to evaluate disability determinations. See

20 C.F.R. § 404.1520. At the first step, the ALJ determines whether the claimant
currently is engaged in substantial gainful employment. § 404.1520(a)(4)(i). If so,
the claimant is not disabled. Id. If not, the ALJ proceeds to step two. Id.
§ 404.1520(a)(4).
At step two, the ALJ decides whether the claimant suffers from any severe
impairments. Id. § 404.1520(a)(4)(ii). If there are no severe impairments, the
claimant is not disabled. Id. If there are any severe impairments, the ALJ proceeds
to step three. Id. § 404.1520(a)(4).
At step three, the ALJ determines whether any severe impairment or
combination of impairments meets or equals an impairment listed in the
regulations. Id. § 404.1520(a)(4)(iii). If the claimant’s severe impairment or
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combination of impairments meets or equals an impairment listed in the
regulations and meets the duration requirement, the claimant is disabled. Id.
§§ 404.1520(A)(4)(iii), (d).
But if the ALJ finds that no severe impairment or combination of
impairments meets or equals any in the regulations, the ALJ proceeds to calculate
the claimant’s residual functional capacity (“RFC”). Id. §§ 404.1520(a)(4)(iv), (e).
The RFC is a holistic assessment of the claimant that addresses the claimant’s
medical impairments—both severe and non-severe—and evaluates the claimant’s
ability to perform physical or mental work activities on a sustained basis,
notwithstanding limitations for her collective impairments. See id. §§ 404.1520(e),
404.1545.
The ALJ then proceeds to step four and determines, using the claimant’s
RFC, whether the claimant can perform past relevant work. Id.
§§ 404.1520(a)(4)(iv), (e). If the claimant can perform past relevant work, he or she
is not disabled and the analysis ends. Id. §§ 404.1520(a)(4)(iv), (f). But if the
claimant cannot, the ALJ proceeds to step five. Id. §§ 404.1520(a), (f).
In the fifth and final step, the Commissioner must present evidence showing
that the claimant is not disabled because the claimant is physically and mentally
capable of adjusting to an alternative job. See Berry v. Schweiker, 675 F.2d 464, 467
(2d Cir. 1982); 20 C.F.R. §§ 404.1520(a)(4)(v), (g). More specifically, the
Commissioner must prove that the claimant “retains a residual functional capacity
to perform alternative substantial gainful work which exists in the national

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economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (internal quotations and
citation omitted).
DISCUSSION
I.

ALJ DECISION
The ALJ analyzed Oleske’s claim for benefits under the process above. At

step one, the ALJ found that Oleske had not engaged in substantial gainful activity
since the alleged onset date. Tr. 26.1 At step two, the ALJ found that Oleske had
the following severe impairments: chronic pancreatitis, type 2 diabetes mellitus,
depressive disorder, and anxiety disorder. Tr. 26-27. At step three, the ALJ found
these impairments, alone or in combination, did not meet or medically equal any of
the impairments listed in the regulations. Tr. 27-30. Next, the ALJ determined
that Oleske retains the RFC to perform sedentary work. Tr. 30. The RFC provided
the following for Oleske’s mental health impairments:
In addition, the claimant is able to understand, remember, and carry out
simple instructions and tasks. The claimant is able to occasionally
understand, remember, and carry out complex instructions and tasks. The
claimant is unable to engage in supervisory duties or work that requires
independent decision-making, but he is able to engage in work with minimal
changes in work routine and processes. The claimant is able to frequently
interact with supervisors and occasionally interact with co-workers and the
general public.
Tr. 30. At step four, the ALJ found that Oleske cannot perform his past relevant
work. Tr. 35. At step five, relying on the testimony of a vocational expert (“VE”)

Docket Item 6 is the transcript of proceedings before the Social Security
Administration. All further references are denoted “Tr. at .”

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and considering Oleske’s age, education, work experience, and RFC, the ALJ
determined that there were jobs that exist in significant numbers in the national
economy that Oleske could perform, including document preparer, addresser, and
surveillance system monitor. Tr. 35-36. Accordingly, the ALJ found that Oleske
was not disabled, as defined in the Act, from the alleged onset date through the date
of the decision. Tr. 36.
II.

WHETHER THE ALJ PROPERLY WEIGHED THE OPINION
EVIDENCE
Oleske asks the Court to reverse or, alternatively, remand this matter,

arguing that the ALJ erred and the denial of disability benefits is not supported by
substantial evidence. He argues that the ALJ failed to assess properly the opinion
evidence regarding his mental health, which resulted in an RFC not supported by
the evidence of record.2 Specifically, Oleske argues that the ALJ erred by giving
“reduced weight” to the opinion evidence of NP Brooks-Devlin and Ms. Farris,
considered non-acceptable medical sources, and giving “significant weight” to
consultative opinions of Dr. Duffy and Dr. Straussner. The Commissioner argues
that her decision is supported by substantial evidence and that the ALJ gave good
reasons for the weights assigned to each opinion.

Oleske makes no arguments that the ALJ erred in determining his physical
limitations and impairments. Thus, this Court focuses its analysis of the ALJ’s
decision on the mental health medical evidence and determinations.
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An ALJ is required to consider every medical opinion received by the Social
Security Administration and to review all evidence. 20 C.F.R. § 404.1527(b)-(c); see
Whipple v. Astrue, 479 Fed. App’x 367, 370 (2d Cir. 2012). Under the applicable
regulations, a physician’s assistant or counselor is not considered an “acceptable
medical source,” and, thus, cannot qualify as a “treating source” whose opinion may
be entitled to controlling weight.3 20 C.F.R. §§ 404.1502(a), 404.1513(a),
404.1527(a). For any medical opinion not afforded controlling weight as a “treating
source,” the ALJ must weigh the opinion using the following factors: length, nature,
and extent of treatment relationship; nature and extent of examining relationship;
the relevant evidence in support of the opinion; the opinion’s consistency with the
record as a whole; whether the opinion is from a specialist; and other relevant
factors. See 20 C.F.R. § 404.1527(c); Smith v. Comm’r of Social Security, 351 F.
Supp. 3d 270, 279 (W.D.N.Y. 2018). Depending on the particular facts of a case,
applying these factors may result in giving greater weight to an opinion from a non-

For claims filed before March 27, 2017, the so-called “treating physician rule”
applies: a treating source opinion is entitled to controlling weight if it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and
not inconsistent with other evidence in the record. 20 C.F.R. §§ 404.1527 (c)(2); see
Colon Medina v. Comm’r of Social Security, 351 F. Supp. 3dd 295, 301 (W.D.N.Y.
2018). A treating source is defined as the claimant’s acceptable medical source who
provides or has provided the claimant with medical treatment or evaluation and
who has or had an ongoing treatment relationship with the claimant. 20 C.F.R.
§§ 404.1527 (a)(2). Because nurse practitioners and counselors do not qualify as
acceptable medical sources, an opinion from a nurse-practitioner or counselor
cannot be given controlling weight under the treating physician rule. See, e.g.,
Albizu v. Berryhill, 335 F. Supp. 3d 355, 380 (E.D.N.Y. 2018) (recognizing that while
the ALJ should consider the opinion of a nurse practitioner in the analysis as an
“other source” opinion, the ALJ was not required to give said opinion controlling
weight).
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acceptable medical or nonmedical source, such as a source who has seen the
individual more often and has provided better supporting evidence and explanation
for the opinion. 20 C.F.R. § 404.1527(f)(1). Further, consideration of an opinion
from someone who is not an “acceptable medical source,” like a nurse practitioner or
counselor, is particularly important where that provider is the “sole source that had
a regular treatment relationship with plaintiff.” Thrasher v. Colvin, No. 12-CV0880 (MAT), 2015 WL 3463453, at *7 (W.D.N.Y. June 1, 2015) (citation omitted).
A. Dr. Duffy and Dr. Straussner
The ALJ erred in giving such substantial weight to the opinions of Dr. Duffy
and Dr. Straussner without explaining the inconsistencies between his own
conclusions of severe impairments, in light of later-submitted evidence, and these
consultative opinions. Without additional explanation, the ALJ erred by concluding
these opinions were consistent with the evidence as a whole and outweighed other
medical opinions in the record.
Oleske met with Kevin Duffy, Psy.D., for a one-time consultative psychiatric
evaluation on August 7, 2014. Tr. 346. Dr. Duffy diagnosed Oleske with mild-tomoderate major depressive disorder and unspecified anxiety disorder. Tr. 349.
According to Dr. Duffy, Oleske had mild-to-moderate difficulties with attention,
concentration, relating adequately with others, and appropriately dealing with
stress. Id. Dr. Duffy found the results of the examination were consistent with
psychiatric problems but could not conclude they were significant enough to
interfere with the claimant’s ability to function on a daily basis at that time. Id.

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On August 15, 2014, J. Straussner, Ph.D., reviewed Oleske’s file, including
Dr. Duffy’s examination report. Tr. 94. Based on the review, Dr. Straussner
concluded Oleske’s psychiatric medically determinable impairment was not severe.
Id.
In the RFC assessment, the ALJ gave “significant weight” to the opinions of
psychologists Dr. Duffy and Dr. Straussner due to their expertise and their relative
consistency of their opinions with each other and the overall medical evidence. Tr.
34. The ALJ considered that both doctors opined that Oleske’s psychological
limitations were, at most, mild-to-moderate. Id. However, the ALJ did note that
subsequent evidence, including mental health treatment notes and Oleske’s
testimony at the hearing, shows that his mental impairments reached the threshold
of severe impairments, but that the totality of the evidence led to a conclusion of not
disabled. Id.
Oleske argues that Dr. Duffy’s one-time examination and lack of detail
regarding Oleske’s limitations does not justify the “significant” weight the ALJ gave
to his opinion. Dkt. 9-1, at 21. As to Dr. Straussner, Oleske argues this opinion is
not entitled to great weight because Dr. Straussner was a non-examining, nontreating source who merely reviewed and signed off on Dr. Duffy’s consultative
examination. Id. at 21-22. Furthermore, Oleske notes that neither review included
records from Mid-Erie Counseling Services, which were entered into the record
later. Id. at 21. Oleske also argues that these opinions contradicted the ALJ’s
determination at step two that Oleske had severe mental impairments (depressive

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disorder and anxiety disorder). Dkt. 17, at 3. Thus, according to Oleske, these
opinions were not consistent with the evidence overall. Id.
State agency medical and psychological consultants are “highly qualified
physicians and psychologists who are experts in the evaluation of the medical issues
in disability claims under the Act.” SSR 96-6p. It is well-settled that a consulting
psychiatric examiner’s opinion may be given great weight and may constitute
substantial evidence to support a decision. See Colbert v. Comm’r of Social Security,
313 F. Supp. 3d 562, 577 (S.D.N.Y. 2018) (collecting cases). A consultative
examiner’s opinion may be accorded greater weight than even a treating source’s
opinion where the ALJ finds it more consistent with the medical evidence. See id.
(collecting cases). Oleske acknowledges that both Dr. Duffy and Dr. Straussner are
experts. Dkt. 17, at 2. As such, the ALJ was correct to consider favorably Dr. Duffy
and Dr. Straussner’s expertise in this area when evaluating their opinions. Tr. 34.
While expertise is a factor listed in 20 C.F.R. § 404.1527, examining the other
factors leads this Court to question ALJ’s cited reasons for according significant
weight to these opinions. First, the ALJ cited the relative consistency of their
opinions with each other. Tr. 34. But as Oleske argues and the Commissioner
admits, Dr. Straussner’s evaluation of Oleske was limited to a review of his file: Dr.
Straussner never treated or examined Oleske, and he relied significantly on Dr.
Duffy’s report from a week earlier to mark Oleske’s restrictions and difficulties as
“mild” on the Disability Determination Explanation. Tr. 94; Dkt. 14-1, at 5 (“On
August 15, 2014, J. Straussner, Ph.D., a psychologist, reviewed Plaintiff’s file”).

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Further, neither of these consultative experts reviewed Oleske’s mental
health treatment notes from Mid-Erie, which were entered into the record at a later
date. Tr. 399. Given these facts, the consistency of the opinions is not surprising.
Second, the treatment and examining relationship factors do not favor
weighing these opinions heavily, as neither doctor treated Oleske and Dr. Duffy
only examined Oleske on one occasion, two years before the ALJ’s decision. 20
C.F.R. § 404.1527(c)(1)-(2). These factors alone do not overturn the ALJ’s
assessment of the opinions, nor do they make the opinions stale. See Camille v.
Colvin, 652 F. App’x 25, 28 n.4 (2d Cir. 2016) (rejecting the argument that a
consultative physician’s opinion was stale just because subsequent treatment
records and the physician’s opinions were submitted in the record, when the
additional evidence did not raise doubts to its reliability). Reliance on a dated
consultative opinion may be justified when it is consistent with the record as a
whole. See Lesanti v. Comm’r of Social Security, 1:19-CV-00121 EAW, 2020 WL
500986, at *3-4 (W.D.N.Y. Jan. 30, 2020) (finding a time gap of two years for
consultative opinion to which ALJ gave great weight was not stale simply based on
its age and where subsequent treatment records did not show significant
deterioration).
Nevertheless, this Court agrees with Oleske that the ALJ failed to explain
adequately how his own findings of severe depressive disorder and anxiety disorder
at step two, based on subsequent evidence and Oleske’s testimony, conflicted with
the opinions of Dr. Duffy and Dr. Straussner. Tr. 28-29, 34. Dr. Duffy’s opinion

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that Oleske had mild-to-moderate difficulties in some areas but generally could
follow and understand simple instructions, perform simple tasks independently,
maintain a regular schedule, learn new tasks, perform complex tasks
independently, and make appropriate decisions is not wholly consistent with
Oleske’s RFC. Tr. 30, 33-34, 348-349. The RFC provided a slightly more restrictive
view of Oleske’s limitations, including occasional complex tasks and not allowing
independent decision-making duties. Tr. 30. This Court acknowledges that the
ALJ is not required to match the RFC perfectly to one medical opinion, even one
given significant weight. See Matt v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013).
However, the ALJ erred in giving such significant weight to these opinions—and as
discussed further below, relying on those opinions to discount other opinions—
without giving any explanation regarding the differences between his findings and
the opinions of Dr. Duffy and Dr. Straussner in light of later-submitted evidence.
Based on this acknowledged but unexplained discrepancy, the ALJ erred by
concluding these opinions were consistent with the evidence as a whole.
B. Farris, LMHC and Brooks-Devlin, NP
A review of the record in this case reveals that Oleske saw Colleen M. Farris,
LMHC and Terry Jo Brooks-Devlin, NP on more than thirty occasions for mental
health treatment. NP Brooks-Devlin managed Oleske’s psychotropic medication
monthly for nearly two years, with frequent adjustments to his medications. Tr.
404. Oleske started seeing Ms. Farris for biweekly counseling in late-2015. Tr. 550.

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In early November 2016, Farris and NP Brooks-Devlin completed a mental
impairment questionnaire that listed the following functional limitations: no or
mild restrictions of activities of daily living; marked difficulties in maintaining
social functioning; moderate deficiencies of concentration, persistence, or pace; and
three repeated episodes of decompensation within 12-month period, each of at least
two weeks duration. Tr. 666. The report also stated that Oleske’s impairments or
treatment would cause him to be absent from work more than four days per month
and that he was not able to function in a work setting. Tr. 667. Oleske’s global
assessment of function (“GAF”) scores ranged 58 through 62. Tr. 664. The report
stated that Oleske’s anxiety and mood symptoms “contribute to worsening” of his
gastrointestinal issues and pain. Tr. 666.
The ALJ gave reduced weight to this mental impairment questionnaire
because (1) Farris and Brooks-Devlin are non-acceptable medical sources, and (2)
their opinions were inconsistent with the well-supported opinions of psychologists
Dr. Duffy and Dr. Straussner. Tr. 34. The ALJ reasoned that the report contained
no clinical findings, detailed explanations, or functional assessments of the
claimant’s work-related abilities. Id. The ALJ also noted that these broad opinions
on Oleske’s ability to work contradicted the GAF scores, which indicate mild-tomoderate psychological symptoms. Tr. 34-35.
Oleske argues that the ALJ failed to consider properly the factors listed in 20
C.F.R. § 404.1527(c), particularly the length and frequency of the treatment
relationship with Brooks-Devlin and Farris. Dkt. 9-1, at 23. The Commissioner

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acknowledges the ALJ did not discuss this factor explicitly, but argues that the
ALJ’s decision reflects his consideration of the factors and good reasons for each
opinion assessment. Dkt. 14-1, at 19, 21. The ALJ states that he considered
opinion evidence in accordance with all the applicable regulation requirements,
including 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. Tr. 30.
The ALJ is required to consider the factors listed in 20 C.F.R. § 1527(c) in
assessing NP Brooks-Devlin and Farris’s opinion. See Smith, 351 F. Supp. 3d at
279. Courts generally do not require a mechanical recitation of regulatory factors
“as long as the record reflects a proper application of the substance of the rule.”
Samantha S. v. Comm’r of Social Security, 385 F. Supp. 3d 174, 184 (N.D.N.Y.
2019) (citing Petrie v. Astrue, 412 F. App’x 401, 407 (2d Cir. 2011) (summary order).
Besides the general recitation of the regulation and a few mentions of treatment
notes, the ALJ did not discuss explicitly these two non-physician providers’ lengthy
and frequent treatment and examining relationships with Oleske. Tr. 34. Such a
treatment relationship—consisting of monthly medication management and
biweekly counseling—is not insignificant, and an opinion based on such a
relationship is, in some cases, entitled to greater weight than a consultative
opinion. See Thrasher, 2015 WL 3463453, at *7.
Here, Oleske had no treatment relationship with an acceptable medical
source like a psychiatrist. In cases like this, where Oleske only has ongoing
treatment relationships with “other sources” like a nurse practitioner and a social
worker, courts may consider these sources’ opinions “critically important” and, thus,

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the ALJ’s failure to accord greater weight to said opinions “significant.” See Emsak
v. Colvin, No. 13-CV-3030, 2015 WL 4924904, at *10-11 (E.D.N.Y. Aug. 18, 2015).
In Emsak, the reviewing court found error where the ALJ failed to discuss
the listed factors for evaluating medical opinions and failed to give sufficient weight
to the opinion of the plaintiff’s nurse-practitioner, who was one of only two
professionals with whom the plaintiff had an “ongoing treating relationship.” Id. at
*11. The context in that case was similar to this case: the treating nurse
practitioner and social worker’s opinions were improperly discounted (or not even
discussed) while the ALJ gave too much weight to the opinions of two consultative
physicians, one who examined the plaintiff once and another who reviewed the file.
Id. at *10-11.
In this case, the ALJ did not mention any treatment notes by either BrooksDevlin or Farris when assessing the Brooks-Devlin and Farris opinion. Tr. 34. The
ALJ’s failure to discuss Oleske’s longstanding treatment and examining
relationships with Brooks-Devlin and Farris is a similarly critical gap in the ALJ’s
reasoning and explanation required under 20 C.F.R. § 1527(c). See Emsak, 2015
WL 4924904, at *10-11; see also Hernandez v. Astrue, 814 F. Supp. 2d 168, 188
(E.D.N.Y. 2011) (finding that the ALJ’s failure to provide “good reasons” for
considering plaintiff’s other source evidence was “particularly critical” where
plaintiff’s primary therapist and social worker was the sole treating source in the
record).

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As for the ALJ’s stated reasons, the ALJ cannot disregard this opinion simply
because it is from a “non-acceptable medical source.” Dkt 9-1, at 22. Although this
is not a case where the ALJ completely disregarded a non-acceptable medical source
opinion based on the identity of its source or failed to give any explanation for
rejecting such an opinion, see Canales v. Comm’r of Social Security, 698 F. Supp. 3d
335, 344 (W.D.N.Y. 2010) (“While the ALJ was free to conclude the opinion of a
licensed social worker was not entitled to any weight, the ALJ had to explain that
decision.”),4 these non-acceptable sources are the only ones with any significant
treatment relationship with Oleske, while the acceptable sources are consultative
physicians. See Emsak, 2015 WL 4924904, at *11-12 (finding the ALJ gave undue
weight to the opinions of consultative physicians, one of whom examined plaintiff
once and the other of whom only reviewed the medical records).
The other stated reason for giving reduced weight to the BrooksDevlin/Farris opinion is that it is inconsistent with the opinions of the consultative
physicians and acceptable medical sources. Tr. 34. Yet the ALJ himself
acknowledged inconsistencies between his own findings at step two and these
opinions, based on subsequent evidence that consisted, in part, of the Brooks-Devlin

The considerations of SSR 06-3p may be satisfied where the ALJ specifically states
in his decision that he considered a non-physician opinion and found it contradicted
by the opinions of the consultative physicians who were acceptable medical sources,
as well as the course of treatment, the objective medical findings of record, and the
claimant’s daily activities. Figueroa v. Astrue, No. 04-CV-7805 (KMK) (LMS), 2009
WL 4496048, at *12 (S.D.N.Y. Dec. 3, 2009) (finding no error in ALJ giving
“minimal weight” to chiropractor’s opinion when the ALJ was explicit about
considering the report and its contradictions with other evidence).
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and Farris medical records and treatment notes. Tr. 34. The ALJ cannot discredit
the Brooks-Devlin/Farris opinion with Dr. Duffy’s and Dr. Straussner’s consultative
opinions without further discussion of how the latter opinion fits within the context
of Brooks-Devlin’s and Farris’s lengthy treatment relationships with Oleske. Nor
can he rely on these acceptable medical source opinions so heavily without
explaining how they are still consistent with the evidence as a whole, when the
ALJ’s examination of all the evidence led him to different conclusions—namely, that
Oleske had a depressive disorder and anxiety disorder that qualified as severe
impairments.
This Court acknowledges the discretion the ALJ has in weighing opinion
evidence. Indeed, this is a close case. But on the facts of this case, the Court
concludes that ALJ’s failure to explain the discrepancies with the consultative
physicians’ opinions and to consider fully the factors listed 20 C.F.R. § 1527(c)
constituted legal error. Remand is appropriate for the ALJ to determine the weight
to accord to these medical source opinions in light of this decision, and based on the
relevant factors and the record as a whole. Although the ALJ may ultimately
conclude that Brooks-Devlin and Farris’s opinion is still entitled to
“reduced weight,” he must nonetheless provide good reasons and explanation
supported by substantial evidence for such a determination. Because re-evaluation
of the weight to be assigned to these opinions could affect the ALJ’s RFC
assessment and the rest of the sequential evaluation process, this Court does not

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reach Oleske’s contention that the RFC assessment was otherwise unsupported by
substantial evidence.
CONCLUSION
For the reasons stated above, Oleske’s motion for judgment on the pleadings,
Dkt. 9, is GRANTED, and the Commissioner’s cross motion for judgment on the
pleadings, Dkt. 14, is DENIED. The decision of the Commissioner is VACATED,
and the matter is REMANDED for further administrative proceedings consistent
with this decision.

SO ORDERED.
Dated:

April 2, 2020
Buffalo, New York

s/ John L. Sinatra, Jr.
JOHN L. SINATRA, JR.
UNITED STATES DISTRICT JUDGE

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