# Sartoretti v. Berryhill

> District Court, E.D. New York · September 17, 2019

URL: https://www.frixlaw.com/law-library/cases/10303020

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 17, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
MICHAEL SARTORETTI,

Plaintiff,
MEMORANDUM & ORDER
-against- 18-CV-0298(JS)

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

Defendant.
-----------------------------------X
APPEARANCES
For Plaintiff: Christopher James Bowes, Esq.
54 Cobblestone Drive
Shoreham, New York 11786

For Defendant: Candace S. Appleton, Esq.
United States Attorney’s Office
Eastern District Of New York
271 Cadman Plaza East
Brooklyn, New York 11201

SEYBERT, District Judge:

Plaintiff Michael Sartoretti (“Plaintiff”) brings this
action pursuant to Section 205(g) of the Social Security Act (the
“Act”), 42 U.S.C. § 405(g), challenging the Commissioner of Social
Security’s (the “Commissioner”) denial of his application for
Social Security Disability Insurance Benefits. (Compl., D.E. 1.)
Presently pending before the Court are the parties’ cross-motions
for judgment on the pleadings. (Pl. Mot., D.E. 10; Comm’r Mot.,
D.E. 18.) For the following reasons, Plaintiff’s motion is GRANTED
and the Commissioner’s motion is DENIED.
BACKGROUND
The background is derived from the administrative record
filed by the Commissioner on June 7, 2018. (R., D.E. 7.) For
purposes of this Memorandum & Order, familiarity with the
underlying administrative record is presumed. The Court’s

discussion of the evidence is limited to the challenges and
responses raised in the parties’ briefs.
From 1990 to November 2013, Plaintiff worked as a police
officer and detective in the New York City Police Department. (R.
33-34, 137.) He worked at the World Trade Center site for
approximately one month after September 11, 2001. (R. 433.) In
2008, he was treated for cancer. (R. 34.) The NYPD medical board
found that he was “disabled from performing the full duties of a
New York City Police Officer due to a respiratory condition as a
consequence of treatment for lymphoma . . . under the aegis of the
World Trade Center Disability Law.” (R. 302, ¶ 10.) His claimed
date of disability is his last day of work for the NYPD. (R. 21.)

Plaintiff applied for disability benefits on April 22,
2014, alleging disability since November 13, 2013, due to Hodgkin’s
lymphoma, polyneuropathy, asthma, reactive airway disease, lumbar
herniated disc, cervical pain, gastroesophageal reflux disease,
and sleep apnea. (R. 11, 136.) The claim was denied, Plaintiff
requested a hearing, and a hearing was held before the ALJ on
October 4, 2016. (R. 11.) In a November 2, 2016 decision, the
ALJ found Plaintiff was not disabled. (R. 11-24.) The Appeals
Council denied Plaintiff’s request for review, making the ALJ’s
decision the final decision of the Commissioner. (R. 1-5.) This
action followed.
DISCUSSION

If the Court finds that substantial evidence exists to
support the Commissioner’s decision, the decision will be upheld,
even if evidence to the contrary exists. See Johnson v. Barnhart,
269 F. Supp. 2d 82, 84 (E.D.N.Y. 2003). “Substantial evidence
means more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009).
Here, the ALJ applied the familiar five-step process,
see 20 C.F.R. §§ 404.1520, 416.920, and found that Plaintiff had
the residual functional capacity (“RFC”) “to perform less than the
full range of light work. Specifically, [he] can lift and/or carry
up to 10 pounds frequently and up to 20 pounds on occasion, sit

for up to six hours in an eight-hour workday with normal breaks,
and stand and/or walk for up to six hours in an eight-hour workday
. . . [and] frequently handle, finger, feel and reach bilaterally.”
(R. 14-15.) The ALJ determined that, based on this RFC finding,
Plaintiff could return to his past relevant work as a detective.
(R. 22.)
Plaintiff argues that (1) the ALJ’s step four finding
that he could engage in light work is not supported by the record,
and (2) the ALJ failed to properly consider his neuropathy as a
severe impairment at step two. (Pl. Br., D.E. 11, at 20-21, 23.)
The Commissioner contends that (1) the ALJ properly evaluated

Plaintiff’s RFC, and (2) the step two finding regarding neuropathy
was supported by substantial evidence. (Comm’r Br., D.E. 16, at
28-35, 25-28.)
Under the applicable regulations,
Light work involves lifting no more than 20
pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very
little, a job is in this category when it
requires a good deal of walking or standing,
or when it involves sitting most of the time
with some pushing and pulling of arm or leg
controls. To be considered capable of
performing a full or wide range of light work,
you must have the ability to do substantially
all of these activities. If someone can do
light work, we determine that he or she can
also do sedentary work, unless there are
additional limiting factors such as loss of
fine dexterity or inability to sit for long
periods of time.

20 C.F.R. 404.1567(b).
If a claimant cannot perform “light work,”
Sedentary work involves lifting no more than
10 pounds at a time and occasionally lifting
or carrying articles like docket files,
ledgers, and small tools. Although a sedentary
job is defined as one which involves sitting,
a certain amount of walking and standing is
often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are
required occasionally and other sedentary
criteria are met.

20 C.F.R. 404.1567(a).
Here, Dr. Stephan Huish, Plaintiff’s treating physician,
“proposed a less than sedentary capacity with sitting limited to
less than four hours, standing and walking limited to less than
two hours in a workday and other limitations.” (R. 19.) Huisch
opined that during an eight-hour work day, Plaintiff could stand
or walk for less than two hours, sit less than four hours, and
lift or carry less than ten pounds. (R. 436.) He also noted the
following limitations: Plaintiff would need to lie down during
the work day, require a sit-stand option, require frequent breaks,
need more than two sick days off each month, and suffered pain
that prevented him from performing eight hours of work. (R. 437.)
The ALJ assigned “little weight” to Huisch’s assessments because
his “progress notes do not bear out such substantial restrictions
. . . [and] he administered only conservative care . . . over a
course of more than two years . . . [and] never requested imaging
of the bilateral knees or the left shoulder during more than two
years of treatment despite suggesting significant manipulative
restrictions.” (R. 19.)
Dr. Michael Hearns, an occupational medicine specialist
and treating physician, “also assessed a less than sedentary
capacity.” (R. 19.) He opined that during an eight-hour work
day, Plaintiff could stand or walk less than two hours, sit less
than four hours, and lift less than 10 pounds. He came to the
same conclusions as Huisch regarding additional limitations such
as lying down, a sit-stand option, frequents breaks, sick days,
and pain. (R. 468-69.) The ALJ gave “little weight” to Hearns’

opinion that Plaintiff had a less than sedentary capacity because
“the preponderance of [his] treatment notes are not compatible
with the degree of limitation proposed by [Plaintiff] or [Hearns]”
and “[Hearns’] specific suppositions appear largely based on
[Plaintiff’s] subjective reports.” (R. 19.)
Dr. Paul Schulster, a treating pulmonologist, opined
that Plaintiff could stand or walk less than two hours, sit less
than two hours, and lift less than 10 pounds occasionally. (R. 18,
359.) Schulster also found Plaintiff would require frequent
breaks, an average or two or more sick days per month, and had
environmental restrictions. (R. 360.) The ALJ concluded that
“these limitations conflict with the mild respiratory obstruction

Dr. Schulster found on pulmonary function testing throughout the
record.” (R. 18.)
Dr. Andrea Pollack performed a consultative examination
of Plaintiff. (R. 17.) She opined that he had “mild to moderate
difficulty climbing, standing, walking and using his bilateral
hands.” She “proposed mild limitations for bending, lifting,
carrying, pushing and pulling.” (R. 17.) The ALJ gave
“considerable weight” to Pollack’s assessment because she directly
observed Plaintiff “during a thorough examination” and it was
“reinforced by objective findings throughout the record.”
(R. 17.) “Moreover, the limitations proposed by Dr. Pollack are
more compatible with the broad range of daily activities

[Plaintiff] conceded a capacity to perform.” (R. 17.)
After the hearing, Dr. Luis Fuchs, an orthopedic surgeon
and medical expert for the Social Security Administration,
responded to medical interrogatories to aid the ALJ. (R. 19, 532.)
He opined that in an eight-hour work day, Plaintiff could sit for
one hour continuously and six hours total, stand or walk for one
hour continuously and two hours total, and lift or carry up to 10
pounds continuously and up to 20 on occasion. (R. 19, 533, 535.)
While the ALJ assigned “good weight” to this opinion, he found
“nonetheless, the balance of the record does not support the degree
of manipulative limitations proposed and the [Plaintiff’s]
generally intact gait and lower extremity neurological function

suggest the ability to stand or walk for longer than two hours per
work day.” (R. 20.) He found that “the limitations proposed by
the consultative examiner Dr. Pollack [to be] a more accurate
reflection of the record as a whole.” (R. 20.)
To summarize, during an eight-hour work day (1) Huish
said Plaintiff could stand or walk for less than two hours and sit
less than four hours; (2) Hearns said Plaintiff could stand or
walk less than two hours and sit less than four hours; (3)
Schulster said Plaintiff could stand or walk less than two hours
and sit less than two hours; and (4) Fuchs said Plaintiff could
sit for one hour continuously and six hours total, and stand or
walk for one hour continuously or two hours total. Aside from

Fuchs, who said Plaintiff could lift 20 pounds “on occasion” (R.
533), no doctor said Plaintiff could lift more than 10 pounds.
Huish, Hearns, and Schulster, Plaintiff’s treating physicians,
also identified many other limitations not accounted for in the
RFC: the need for lying down, a sit-stand option, frequent breaks,
two or more sick days per month, and Plaintiff’s pain that
prevented him from performing eight hours of work. Huish and
Hearns evaluated Plaintiff as being able to work at a less than
sedentary capacity.
The ALJ gave “considerable weight” to Pollack’s opinion
stating only that Plaintiff experienced “mild” limitations. This
assessment was not sufficient for the ALJ to base his RFC upon,

especially where other doctors made specific, contrary findings
about Plaintiff’s limitations in an eight-hour work day which are
not reflected in the RFC. See Selian v. Astrue, 708 F.3d 409, 421
(2d Cir. 2013) (consultative examiner’s “opin[ion] that [the
Plaintiff] should be able to lift . . . objects of a mild degree
of weight on an intermittent basis . . . is remarkably vague. What
[the doctor] means by ‘mild degree’ and ‘intermittent’ is left to
the ALJ’s sheer speculation.”) (first ellipsis in original;
internal quotation marks and citation omitted); Catalano v.
Berryhill, No. 17-CV-7120, 2018 WL 6437059, at *9 (S.D.N.Y. Dec.
7, 2018) (treating physician’s opinion that the Plaintiff had
“moderate exertional limitations in general . . . cannot be

translated to a specific weight [lifting] classification”). While
the Court recognizes that opinions such as these can provide a
basis for an RFC, see Nelson v. Colvin, No. 12-CV-1810, 2014 WL
1342964, at *12 (E.D.N.Y. Mar. 31, 2014), here, these vague
statements are not supported, but rather are contradicted, by the
opinions of three treating physicians and an SSA medical advisor.
Compare De Gonzalez v. Berryhill, No. 16-CV-06723, 2018 WL 6834474,
at *11 (E.D.N.Y. Dec. 28, 2018) (the consultative examiner’s
opinion that the Plaintiff had “mild restriction for climbing,
walking, standing, bending, lifting and carrying because of back
pain” “is not the only medical evidence in the record that supports
the ALJ’s decision. When [the] opinion is coupled with all of the

other evidence in the record, there is certainly sufficient
evidence to support the ALJ’s RFC finding.”).
Thus, the Court finds that the ALJ’s RFC finding is not
supported by substantial evidence and therefore REMANDS the matter
for further proceedings consistent with this Order. In light of
this finding, the Court need not address Plaintiff’s contention
that the ALJ did not consider his neuropathy to be a severe
impairment. As the matter is remanded for a new hearing, Plaintiff
will have the opportunity to develop the record on this issue.1
The Clerk of the Court is directed to enter judgment
accordingly and mark this case CLOSED.

SO ORDERED

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.

Dated: September 17__, 2019
Central Islip, New York

1 The Commissioner argues that because the ALJ stated at step
five that the vocational expert had identified several sedentary
jobs Plaintiff could perform, “the ALJ’s RFC finding is broader
than interpreted by Plaintiff and remand is not required as it
would lead only to the same conclusion that Plaintiff is not
disabled under the Act.” (Comm’r Br. at 30, internal quotation
marks and citation omitted.) As the Commissioner also notes,
the applicable regulations determine that if “someone can do
light work, . . . he [ ] can also do sedentary work, unless
there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.” 20
C.F.R. § 404.1567(b) (emphasis added). The Commissioner argues
that “those limiting factors are not present here.” (Comm’r Br.
at 30.) However, as already noted in this Order, Plaintiff’s
doctors identified numerous limiting factors in their
evaluations. (See R. 360, 437, 468-69.) In light of its
decision on the RFC finding, on this record, the Court does not
reach the issue of whether Plaintiff is capable of performing
sedentary work.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303020. Public record. Not legal advice.