# Diorio v. Commissioner of Social Security

> District Court, E.D. New York · October 7, 2020

URL: https://www.frixlaw.com/law-library/cases/10305016

## Case

- **Court:** District Court, E.D. New York
- **Decided:** October 7, 2020
- **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
JOHN DIORIO,
For Online Publication Only

Plaintiff,
MEMORANDUM & ORDER
-against- 19-CV-1482 (JMA)

ANDREW SAUL,1
Commissioner of Social Security,

Defendant.
---------------------------------------------------------------X FILED
APPEARANCES CLERK

Howard D. Olinsky 10/7/2020 12   :27 pm
Olinsky Law Group U.S. DISTRICT COURT
250 South Clinton St. EASTERN DISTRICT OF NEW YORK
Ste. 210 LONG ISLAND OFFICE
Syracuse, NY 13202
Attorney for Plaintiff

Matthew J. Modafferi
United States Attorney's Office, EDNY
271-a Cadman Plaza East
Brooklyn, NY 11201
Attorney for Defendant

AZRACK, United States District Judge:
Plaintiff John Diorio (“Plaintiff” or “Diorio”) seeks review of the final determination by
the Commissioner of Social Security (the “Commissioner”), reached after a hearing before an
administrative law judge (“ALJ”), denying Plaintiff disability insurance benefits under the Social
Security Act. The case is before the Court on the parties’ cross-motions for judgment on the
pleadings. For the reasons discussed herein, Plaintiff’s motion for judgment on the pleadings is

1 Andrew Saul became the Commissioner of the Social Security Administration on June 17, 2019. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Andrew Saul is substituted for Acting Commissioner Nancy A. Berryhill
as the defendant in this suit.
GRANTED, the Commissioner’s cross-motion is DENIED, and the case is REMANDED for
proceedings consistent with this opinion.
I. BACKGROUND
A. Procedural History
On December 30, 2014, Plaintiff filed for disability insurance benefits with the Social

Security Administration (“SSA”), alleging disability as of March 28, 2014, due to bilateral
shoulder pain, left wrist pain, and anxiety. (Tr. 55-56, 150-51, 169.2) Following denial of his
claim, Plaintiff requested a hearing and appeared with his attorney for an administrative hearing
before Administrative Law Judge Patrick Kilgannon (“ALJ Kilgannon”) on June 13, 2017. (Tr.
35-54.)
In a decision dated July 19, 2017, the ALJ denied Plaintiff’s claim, finding that he was not
disabled because he still retained the residual functional capacity (“RFC”) to perform unskilled
light work. He was limited to sitting/standing/walking six hours each in an eight-hour workday
with normal breaks, lifting/carrying 20 pounds occasionally and 10 pounds frequently, and was

further limited to occasional bilateral overhead reaching, and frequent handling, fingering, and
feeling in his upper extremities. (Tr. 20-24.) ALJ Kilgannon determined that though these
limitations would preclude performance of Plaintiff’s previous employment as a bricklayer, there
are jobs that exist in significant numbers in the national economy that he can perform. (Tr. 16-
26.) ALJ Kilgannon’s decision became the final decision of the Commissioner when the Appeals
Council denied Plaintiff’s request for review on July 25, 2018. (Tr. 8-10.) This appeal followed.
B. Plaintiff’s Background and Testimony
Plaintiff was born on July 25, 1963. (Tr. 164.) His educational background includes a

2 Citations to “Tr.” refer to pages of the certified administrative record filed by the Commissioner. (ECF No. 16.)
high school diploma. (Tr. 40, 170.) Plaintiff testified that he worked as a bricklayer until March
2014, when he was injured on the job. (Tr. 40-41.) Plaintiff reported that he was applying
windowsill stones to a building when his partner dropped his end of a 250-pound stone and Plaintiff
caught the stone so that it would not fall off the building. (Tr. 414.)
As part of his application for disability insurance benefits, Plaintiff filled out a function

report, dated March 2, 2015. In the function report, Plaintiff stated that his daily activities included
having coffee, showering, getting dressed, eating, and watching television. (Tr. 179.) Plaintiff
noted that he goes outside every day, drives a car, and shops weekly. (Tr. 181-83.) He also
reported that he babysits his grandchildren, aged 3-years-old and 4 months-old, and has no
problems with personal care. (Tr. 179.) He reported playing card games and board games weekly.
(Tr. 183.) However, Plaintiff stated he could not work, bend, or lift anything over five pounds.
(Tr. 181.) Plaintiff is not able to clean, do household chores or laundry, and has pain while lying
in bed. (Tr. 179, 181.) He reported that he could walk up to 300 feet before needing to rest for
three to five minutes, and also has difficulty with kneeling, squatting, reaching, using his hands,

and hearing. (Tr. 184-85.)
At the June 13, 2017 hearing, Plaintiff testified that he has pain in his left wrist ranging
from 6 out of 10 to 10 out of 10 and wears a brace approximately three times a week, and
sometimes longer. (Tr. 42-43.) Plaintiff testified that he wakes up with pain in his wrist that is
worsened by activity including squeezing, picking up objects, folding laundry, and pressure. (Tr.
43-44.) Plaintiff also testified he has pain in both shoulders, and that the pain in his right shoulder
is “now” worse than the pain in his left shoulder. (Id.) Plaintiff testified that he has pain in his
right shoulder ranging from 7 out of 10 to 10 out of 10. (Tr. 43.) He had surgery on his left
shoulder, but still suffers pain ranging from a 4 out of 10 to 8 out of 10. (Id.) He wakes with pain
in both shoulders that worsens with activity, including lifting and household chores. (Tr. 43-44.)
Plaintiff also testified that he has pain in his neck, which is worsened by everyday activities such
as walking, driving, sitting, or standing, and ranges from 5 out of 10 to 10 out of 10. (Tr. 43-45.)
He experiences shortness of breath about twice per day from walking and bending. (Tr. 45.)
Plaintiff testified he could sit for approximately 20 minutes before he would need to stand up,

stretch, or walk around for three to five minutes. (Tr. 47-48.) He can stand for 45 minutes, but he
will start to feel pain after approximately 15 minutes. (Tr. 48.) Plaintiff testified that he could lift
“five, ten pounds, maybe,” but stated that he had difficulty grabbing objects with both his hands,
as well as reaching in all directions. (Tr. 48-50.) Plaintiff testified that he is able to shower, get
dressed, tie his shoes, but does so with pain. (Tr. 51.) He is unable to do housework without the
assistance of his wife or grown son. (Tr. 50-51.) He has difficulty sleeping as a result of his pain
and anxiety. (Tr. 50.) He testified that he takes anti-inflammatory medication for his shoulders
and a muscle relaxer, gets Cortisone shots in his right shoulder, and does at-home physical therapy.
(Tr. 41-42, 46.) He stated that he was waiting to have surgery on his right shoulder, following

planned colon surgery. (Tr. 41.)
C. Relevant Medical Evidence
1. Dr. Richard Tabershaw – Orthopedist
Richard J. Tabershaw, M.D., treated Plaintiff between April 7, 2014 and April 20, 2017
primarily for bilateral shoulder pain and left wrist pain. On April 7, 2014, Plaintiff first underwent
an orthopedic consultation with Dr. Tabershaw, at Suffolk Orthopaedic Associates, for left
shoulder pain, following an emergency room visit the day prior and upon referral from his primary
care physician, Vikas Desai, M.D. (Tr. 310.) Dr. Tabershaw diagnosed acute rotator cuff and
biceps tendinopathy and stated he could not rule out a SLAP lesion. (Tr. 311.) On April 14, 2014,
Plaintiff had an MRI of his left shoulder, which revealed mild supraspinatus and anterior
infraspinatus tendinopathy, minimal subacromial/subdeltoid and mild subcoracoid bursitis, mild
localized synovitis in the anterosuperior glenohumeral joint, a SLAP tear with small
posterosuperior paralabral cyst, small chronic tears of the posterior and anterior labrum, and mild
hypertrophic acromioclavicular joint degeneration. There was no evidence of a rotator cuff tear.

(Tr. 314.) On April 18, 2014, Plaintiff had a follow-up with Dr. Tabershaw where he reported
only mild improvement from his last visit, and that most of his symptoms resulted from reaching
in front. (Tr. 318.) Dr. Tabershaw noted tenderness over the biceps tendon, that Plaintiff’s Speed
and throw-through signs were positive, discomfort with abduction external rotation but no gross
instability, and that his cuff strength was well-maintained. (Id.) Dr. Tabershaw treated Plaintiff’s
shoulder with a lidocaine injection, and Plaintiff reported improved symptoms immediately after.
(Id.) Dr. Tabershaw advised Plaintiff that if there was no significant improvement following the
injection and physical therapy, an arthroscopic labral repair surgery would be indicated. (Id.) Dr.
Tabershaw also recommended Plaintiff wait ten to fourteen days to return to work. (Id.)

On May 5, 2014, Plaintiff had a follow-up visit with Dr. Tabershaw and reported that the
injection provided some relief. (Tr. 319.) Dr. Tabershaw found that physical therapy for six to
twelve weeks was indicated, and that Plaintiff should not perform heavy labor but could perform
very sedentary activities. (Id.) On June 16, 2014, Plaintiff had another follow-up visit with Dr.
Tabershaw and reported that six weeks of physical therapy provided him some relief. (Tr. 320.)
Plaintiff also reported that he pulled his right shoulder while moving luggage because he was not
using his left shoulder. (Id.) On examination, Plaintiff had positive abduction external rotation
pain on both sides, with greater pain on the left, and had a positive SLAP stress test on the right.
(Id.) Dr. Tabershaw recommended six more weeks of physical therapy, after which he
recommended Plaintiff try to return to work, “hopefully in a foreman-type position where he is
only doing intermittent heavy lifting.” (Id.) If that failed, he would be treated with arthroscopic
surgery. (Id.) Dr. Tabershaw also recommended that the right shoulder be treated on an as-needed
basis. (Id.)
On July 1, 2014, Plaintiff returned to Dr. Tabershaw complaining of left wrist pain and

right shoulder pain. (Tr. 327.) On examination of Plaintiff’s right shoulder, Dr. Tabershaw found
no swelling, but tenderness to palpation was noted, with active range of motion limited in all planes
due to pain. (Tr. 328.) Dr. Tabershaw diagnosed a mild wrist sprain and noted that his right
shoulder pain was likely compensatory due to Plaintiff’s left shoulder injury. (Id.) Dr. Tabershaw
noted that Plaintiff could perform no work at that time and advised him to avoid any strenuous
activity. (Id.)
On July 18, 2014, an MRI of Plaintiff’s right shoulder revealed a low to moderate grade
focal partial articular surface tear consistent with a moderate grade SLAP lesion, mild
acromioclavicular hypertrophy with mild subacromial/subdeltoid bursitis, and mild infraspinatus

tendinosis. (Tr. 323.)
On July 28, 2014, Plaintiff had a follow-up visit with Dr. Tabershaw. (Tr. 329-330.) Dr.
Tabershaw diagnosed a left wrist sprain, and bilateral shoulder pain due to rotator cuff
tendinopathy and labral tears. (Tr. 330.) Dr. Tabershaw authorized bilateral shoulder arthroscopic
surgery with the left shoulder surgery to be performed prior to the right. He advised that Plaintiff
use a wrist splint and avoid heavy lifting, and noted Plaintiff would continue to be out of work.
(Id.)
On September 8, 2014, Plaintiff visited Dr. Tabershaw and reported that he was
“miserable” due to pain. (Tr. 331.) Dr. Tabershaw again stated that he planned to proceed with
left shoulder arthroscopic surgery, and if successful, it would be performed on the right shoulder
as well. (Tr. 331-332.) Dr. Tabershaw assessed 100% disability. (Tr. 332.)
On January 23, 2015, Plaintiff underwent surgery on his left shoulder. (Tr. 337.) Dr.
Tabershaw noted that Plaintiff should get some relief following surgery and hoped that would
allow Plaintiff to return to his activities. (Id.) On January 29, 2015, Plaintiff had a follow-up visit

with Dr. Tabershaw. (Tr. 365.) Plaintiff complained that he was uncomfortable. On examination,
Dr. Tabershaw found that he had minimal active range of motion and prescribed physical therapy.
(Id.)
On February 19, 2015, Plaintiff reported that he was markedly better and was attending
physical therapy three times per week. (Tr. 367.) Dr. Tabershaw noted that Plaintiff was doing
very well at less than one-month post-op, and that Plaintiff’s temporary impairment continued to
be 100%. (Id.)
On March 16, 2015, Plaintiff reported to Dr. Tabershaw that his left shoulder was hurting
a lot particularly over the AC joint and that he felt he had backslid. (Tr. 369.) On examination,

Dr. Tabershaw noted fluid over the shoulder and exquisite pain over the AC joint and subacromial,
which was precipitated by abduction external rotation. (Tr. 369.) A subacromial injection was
administered, and Plaintiff was capable of full forward elevation of the shoulder, but he was still
tender over the AC joint, and abduction external rotation still caused pain. (Id.)
On March 28, 2015, Dr. Tabershaw completed an upper extremity impairment
questionnaire. (Tr. 357.) Dr. Tabershaw noted that Plaintiff was limited to no more than
occasional lifting and carrying up to five pounds. (Tr. 359.) His pain increased with significant
repetitive reaching, handling, or fingering. (Tr. 360.) Dr. Tabershaw reported that Plaintiff had
minimal limitations in grasping, turning, or twisting objects, and using his fingers or hands for fine
manipulative skills; moderate limitations in using his arms for reaching; and that he was limited to
no pushing or pulling. (Tr. 359-61.) Dr. Tabershaw further noted that Plaintiff would be absent
more than three times a month as a result of his impairments or treatment. (Tr. 361.)
On April 27, 2015, Plaintiff reported that his shoulder still hurt and that he still had
significant pain when he abducted and externally rotated. (Tr. 371.) On examination, Dr.

Tabershaw noted that there was no pain over the AC joint, but mild pain over the bicipital groove
and during abduction external rotation. (Id.) Dr. Tabershaw reported that Plaintiff was 100%
disabled at the time, but he anticipated Plaintiff would be able to return to sedentary duty. (Id.)
On June 1, 2015, Plaintiff reported to Dr. Tabershaw that the injection at the last visit did
not give him any significant improvement. (Tr. 383.) On examination, Dr. Tabershaw observed
tenderness when Plaintiff abducted or rotated the shoulder, persistent left shoulder pain, and his
squeeze test was positive. (Id.) Dr. Tabershaw assessed that Plaintiff was totally disabled from
his work as a bricklayer. (Tr. 381.)
On May 18, 2016, Plaintiff saw Dr. Tabershaw again and reported that his left shoulder

was doing well post-surgery and it was tolerable. (Tr. 410.) Plaintiff complained of intermittent
pain and swelling of his left wrist. (Id.) Dr. Tabershaw diagnosed left wrist tenosynovitis with
sprain, and mild post-traumatic arthritis. (Id.) On May 27, 2016, Plaintiff reported that he was
doing significantly better and on examination, there was minimal tenderness, range of motion of
his wrist had improved without any significant discomfort, and he exhibited full grip strength. (Tr.
413.) On June 21, 2016, Plaintiff reported that his neck hurt, that he got pain down his right arm
when he turned to the right and could not turn all the way to the right, and that his left shoulder
had been hurting him. Dr. Tabershaw noted that he felt the right shoulder problems were
consequential to the injury. (Tr. 407.)
On September 15, 2016, Plaintiff reported to Dr. Tabershaw that his left wrist was still
bothering him, his left shoulder was better but he still had pain, and his right shoulder hurt. He
also had significant paresthesia that went down his hands. (Tr. 421.) Plaintiff also reported at this
visit that he had not seen the doctor in a few months because he was having major problems with
his insurance. (Id.) Dr. Tabershaw found that, while the left shoulder surgery provided Plaintiff

with some relief, it was a mistake not to take the bicep tendon during the surgery, as Plaintiff’s
symptoms were predominately bicipital. (Id.) He found that with respect to the right shoulder,
Plaintiff would probably benefit surgery. In the future he might need a biceps release on the left
side. (Id.) Dr. Tabershaw further stated that Plaintiff was disabled and his job as a bricklayer was
behind him. He noted that some improvement was possible with injections and an epidural to his
neck and right shoulder surgery. (Id.)
On November 1, 2016, Plaintiff reported that his right shoulder was becoming
progressively more painful, his left shoulder still had significant pain, and his left wrist was still
bothering him significantly. (Tr. 424.) Dr. Tabershaw reported that Plaintiff exhibited pain in

both his shoulders and left wrist. (Id.) Dr. Tabershaw diagnosed left wrist post-traumatic arthritis
and sprain, cervical sprain with herniated discs, bilateral shoulder sprains with post-traumatic
bicipital tendinitis, and rotator cuff tendonitis and impingement syndrome. (Id.) Plaintiff was
treated with a left wrist injection. (Id.) On December 1, 2016, Plaintiff reported that he felt that
his left shoulder was still the same but the pain had diminished by 50%, his left wrist was feeling
much better after the injection, and he continued to experience pain in his right shoulder. (Tr.
427.) Dr. Tabershaw diagnosed a right shoulder impingement, AC joint arthritis, tendinitis,
degenerative labral tearing with bicipital labral disease, and work-related injury to the left wrist.
(Id.) Dr. Tabershaw opined that Plaintiff was disabled from his regular job, and he would never
let him return to any type of heavy masonry work. (Id.) He further opined that Plaintiff’s disability
was 50% related to the shoulder. (Id.)
In March and April 2017, Plaintiff indicated that he was experiencing significant pain in
his right shoulder and that he wanted to consider surgery. (Tr. 429.) He reported that his left wrist
and shoulder were somewhat feeling better. (Id.) Dr. Tabershaw reported that Plaintiff wanted to

proceed with right shoulder surgery but had to first wait for his diverticulitis treatment before
proceeding. (Id.) Plaintiff’s disability was listed at 50%. (Tr 436.)
2. Dr. Vikas Desai – Internist
On February 16, 2015, Vikas Desai, M.D., completed an impairment questionnaire in
connection with Plaintiff’s state disability claim. Dr. Desai reported that Plaintiff had a SLAP tear
resulting in severe shoulder pain with decreased range of motion. (Tr. 353-54.) Dr. Desai reported
that Plaintiff was limited in pushing and pulling, and limited to frequently lifting no more than five
pounds. (Tr. 355.) He opined that Plaintiff had no limitations in standing, walking, or sitting.
(Id.)

3. Dr. Andrea Pollack – Consultative Examination
At the request of the Commissioner, Plaintiff underwent a consultative physical
examination by Andrea Pollack, D.O., on February 9, 2015, a few weeks after his shoulder surgery.
(Tr. 346.) Plaintiff reported that he had been experiencing shoulder, wrist, and elbow pain since a
work-related injury on March 21, 20133, and had been diagnosed with a SLAP tear of the left
shoulder. (Id.) Plaintiff indicated that he can shop, shower, and get dressed. As part of the
physical examination, Dr. Pollack noted that Plaintiff’s gait was normal; he was in no acute
distress; he could walk on his heels and toes without difficulty; he could squat 2/3 of the way

3 This appears to be an error in the record. This should state March 2014.
down; and his stance was normal. (Tr. 347.) Plaintiff needed no help changing for the exam, or
getting on and off the exam table, and was able to rise from a chair without difficulty. (Id.) He
also demonstrated full range of motion of his elbows, forearms, wrists, and ankles. (Tr. 348.)
Plaintiff’s left shoulder forward elevation and abduction was 100 degrees, adduction was 15
degrees, internal rotation was 20 degrees, and external rotation was 45 degrees. (Id.) His joints

were stable and non-tender. He demonstrated 5/5 strength in upper and lower extremities. (Id.)
Dr. Pollack diagnosed Plaintiff with bilateral shoulder pain, bilateral knee pain, and left
wrist and elbow pain. (Tr. 349.) Dr. Pollack noted that Plaintiff had moderate restrictions in
lifting, carrying, pushing, pulling, and reaching with his left arm; mild to moderate restrictions in
squatting; moderate restriction in bending; and mild restriction in walking, standing, climbing
stairs, and kneeling. (Id.)
4. Other Records
The administrative record includes medical records from other doctors and facilities dating
back to 2004. (Tr. 233-309.) Much of Plaintiff’s history predating his alleged onset date deal with

his abdominal issues, diverticulosis, and kidney stones. (Id.) Plaintiff does not claim a disability
based on these ailments. There are also medical records regarding his mental health and anxiety.
(Tr. 340-43, 431-34.) Plaintiff does not seek review of ALJ Kilgannon’s findings regarding his
mental health. (See Pl. Br., generally.)
D. The ALJ’s Decision
ALJ Kilgannon issued his decision on July 19, 2017, applying the five-step process
described below, pursuant to 20 C.F.R. § 404.1520. (Tr. 13–26.) At step one, ALJ Kilgannon
concluded that Plaintiff had not engaged in substantial gainful activity since his alleged onset date
of March 28, 2014. (Tr. 18.) At step two, ALJ Kilgannon found that Plaintiff has severe
impairments of cervical degenerative disc disease, bilateral shoulder degenerative joint disease
status-post left shoulder arthroscopic repair, and left wrist degenerative joint disease. (Id.) At step
three, ALJ Kilgannon determined that Plaintiff’s impairments, alone or in combination do not meet
or medically equal the severity of any of the regulation’s listed impairments. (Tr. 20.) Specifically,
ALJ Kilgannon considered Listings 1.00, 1.02, and 1.04. (Id.)

ALJ Kilgannon then addressed step four, first considering Plaintiff’s RFC. An RFC
determination identifies what work a claimant can still perform, despite his limitations. See C.F.R.
§ 404.1545. The ALJ found that Plaintiff had the RFC to perform unskilled light work limited to
sitting/standing/walking six hours each in an eight-hour workday with normal breaks,
lifting/carrying 20 pounds occasionally and 10 pounds frequently, and was further limited to
occasional bilateral overhead reaching, and frequent handling, fingering, and feeling in his upper
extremities. (Tr. 20-24.)
In considering Plaintiff’s limitations, ALJ Kilgannon made various observations about
Plaintiff’s testimony and reviewed Plaintiff’s medical records. (Tr. 20-24.) ALJ Kilgannon

afforded “little weight” to Dr. Tabershaw’s opinion that Plaintiff was totally/partially disabled or
had a 50% or 60% disability because any physician statements in the record that offer that a
claimant is “disabled” are considered only for the fact that they are stated, and are entitled to no
special significance because the legal finding of disability is reserved for the Commissioner of
Social Security. (Tr. 22.) ALJ Kilgannon afforded “limited weight” to the upper extremity
questionnaire that Dr. Tabershaw completed in March 2015 because: “the opinion offered, only a
few months after surgery, is inconsistent with later treatment records, suggesting some relief from
treatment, which includes surgery and that the claimant is right hand dominant;” “there is little
objective support for the extreme limitations in lifting/carrying, which are inconsistent with the
treatment records;” and the opinion was “also inconsistent with the notation that [Dr. Tabershaw]
felt the claimant could return to sedentary duty.” (Tr. 22-23.)
ALJ Kilgannon afforded “little weight” to the opinion furnished by Dr. Vikas Desai,
because the opinion offered was outside the specialty of Dr. Desai, an internist, and inconsistent
with the orthopedic record which suggested some positive response to treatment. (Tr. 23.)

ALJ Kilgannon afforded “good weight” to the opinion of the consultative examiner, Dr.
Pollack, because it was consistent with Dr. Pollack’s examination. (Id.)
Upon consideration of the evidence, ALJ Kilgannon found that Plaintiff’s medically
determinable impairments could reasonably be expected to cause his alleged symptoms, but that
his statements concerning the intensity, persistence, and limiting effects of the symptoms were not
entirely consistent with the evidence. (Tr. 24.) Based on the RFC, ALJ Kilgannon concluded at
step four that Plaintiff could not perform his past relevant work as bricklayer. (Id.)
Finally, ALJ Kilgannon relied on the testimony of the Vocational Expert (“VE”) to
determine at step five that there are jobs that exist in significant numbers in the national economy

that Plaintiff can perform including a furniture rental consultant, usher, and counter clerk. (Tr. 25-
26, 52-53.) Accordingly, ALJ Kilgannon found that Plaintiff was not under a disability as defined
in the Social Security Act from March 28, 2014 through the date of his decision. (Tr. 26.)
II. DISCUSSION
A. Social Security Disability Standard
Under the Social Security Act, “disability” is defined as “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.” 42 U.S.C. § 423(d)(1)(A). An individual is
disabled when his “physical or mental impairment or impairments are of such severity that he is
not only unable to do his previous work but cannot, 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. § 423(d)(2)(A).
The Commissioner’s regulations set out a five-step sequential analysis by which an ALJ

determines disability. 20 C.F.R. § 404.1520. The analysis is summarized as follows:
[I]f the Commissioner determines (1) that the claimant is not working, (2) that he
has a ‘severe impairment,’ (3) that the impairment is not one [listed in Appendix 1
of the regulations] that conclusively requires a determination of disability, and
(4) that the claimant is not capable of continuing in his prior type of work, the
Commissioner must find him disabled if (5) there is not another type of work the
claimant can do.

Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008) (second alteration in original) (quoting Green–
Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003)). As part of the fourth step, the
Commissioner determines the claimant’s RFC before deciding if the claimant can continue in his
or her prior type of work. 20 C.F.R. § 404.1520(a)(4)(iv). The claimant bears the burden at the
first four steps; but at step five, the Commissioner must demonstrate “there is work in the national
economy that the claimant can do.” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009); see also
Campbell v. Astrue, No. 12-CV-5051, 2015 WL 1650942, at *7 (E.D.N.Y. Apr. 13, 2015) (citing
Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999)).
B. Scope of Review
In reviewing a denial of disability benefits by the SSA, it is not the function of the district
court to review the record de novo, but instead to determine whether the ALJ’s conclusions “‘are
supported by substantial evidence in the record as a whole, or are based on an erroneous legal
standard.’” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Beauvoir v. Chater, 104
F.3d 1432, 1433 (2d Cir. 1997)). Substantial evidence is “‘more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)). “‘To determine whether the findings are supported by substantial evidence, the reviewing
court is required to examine the entire record, including contradictory evidence and evidence from
which conflicting inferences can be drawn.’” Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999)

(quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Thus, the Court
will not look at the record in “isolation but rather will view it in light of other evidence that detracts
from it.” State of New York ex rel. Bodnar v. Sec. of Health and Human Servs., 903 F.2d 122,
126 (2d Cir. 1990). An ALJ’s decision is sufficient if it is supported by “adequate findings . . .
having rational probative force.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
C. Analysis
Plaintiff puts forth two arguments in support of his appeal of ALJ Kilgannon’s decision.
First, Plaintiff argues that ALJ Kilgannon failed to properly weigh the opinion of his treating
physician, Dr. Tabershaw, and the opinion of consultative examiner, Dr. Pollack, and therefore,

the RFC is not supported by substantial evidence. (Pl.’s Br. at 9-22.) Second, Plaintiff contends
that his case was adjudicated by an improper and unconstitutionally appointed ALJ and should
therefore be remanded. (Id. at 22-25.) The Court agrees that ALJ Kilgannon failed to provide
“good reasons” for not affording Dr. Tabershaw’s opinion controlling weight under the treating
physician rule. Remand is therefore warranted.
1. RFC Analysis
An RFC determination specifies the “most [a claimant] can still do despite [the claimant’s]
limitations.” Barry v. Colvin, 606 F. App’x 621, 622 n.1 (2d Cir. 2015) (summary order); see
Crocco v. Berryhill, No 15-CV-6308, 2017 WL 1097082, at *15 (E.D.N.Y. Mar. 23, 2017) (stating
that an RFC determination indicates the “nature and extent” of a claimant’s physical limitations
and capacity for work activity on a regular and continuing basis) (citing 20 C.F.R. § 404.1545(b)).
In determining a claimant’s RFC, “[t]he Commissioner must consider objective medical
evidence, opinions of examining or treating physicians, subjective evidence submitted by the
claimant, as well as the claimant’s background, such as age, education, or work history.” Crocco,

2017 WL 1097082, at *15; see also Barry, 606 F. App’x at 622 n.1 (“In assessing a claimant’s
RFC, an ALJ must consider ‘all of the relevant medical and other evidence,’ including a claimant’s
subjective complaints of pain.”) (quoting 20 C.F.R. § 416.945(a)(3)). An RFC determination must
be affirmed on appeal where it is supported by substantial evidence in the record. Barry, 606 F.
App’x at 622 n.1.
2. Dr. Tabershaw’s Opinion

The administrative record contains medical records documenting Dr. Tabershaw’s
treatment of Plaintiff’s shoulders and left wrist from April 7, 2014 through April 20, 2017. On
March 28, 2015, Dr. Tabershaw completed an upper extremity impairment questionnaire. (Tr.
357.) In the questionnaire, Dr. Tabershaw noted that Plaintiff was limited to no more than
occasional lifting and carrying of up to five pounds, that his pain increased with significant
repetitive reaching, handling, or fingering, that he had minimal limitations in grasping, turning, or
twisting objects and using his fingers or hands for fine manipulative skills, and moderate
limitations in using his arms for reaching. (Tr. 359-61.) Dr. Tabershaw further noted that Plaintiff
would be absent more than three times a month as a result of his impairments or treatment, and
that he was limited to no pushing or pulling. (Tr. 361.)
ALJ Kilgannon afforded “limited weight” to the upper extremity questionnaire for four
reasons: (1) “the opinion offered, only a few months after surgery, is inconsistent with later
treatment records, suggesting some relief from treatment, which includes surgery;” (2) the opinion
was inconsistent with treatment records stating that Plaintiff is right hand dominant; (3) “there is
little objective support for the extreme limitations in lifting/carrying, which are inconsistent with
the treatment records;” and (4) the opinion was “inconsistent with the notation that [Dr.
Tabershaw] felt the claimant could return to sedentary duty.” (Tr. 22-23.)

3. The ALJ Failed to Properly Apply the Treating Physician Rule in Weighing Dr.
Tabershaw’s Opinion

In weighing Dr. Tabershaw’s opinion, the ALJ was bound by the “treating physician rule”
that was in effect when Plaintiff filed his application. If a treating physician’s opinion regarding
the nature and severity of an individual’s impairments is supported by “medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence” in the record, the ALJ will credit that opinion with “controlling weight.” 20 C.F.R. §
404.1527(c)(2); Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). A treating physician's
opinion “on the nature or severity of a claimant’s impairments is binding if it is supported by
medical evidence and not contradicted by substantial evidence in the record.” Selian v. Astrue,
708 F.3d 409, 418 (2d Cir. 2013). An ALJ must provide “good reasons” not to grant controlling
weight to a treating physician’s opinion. See Schaal, 134 F.3d at 503-04. And, when a treating
physician’s opinion is not given controlling weight, the ALJ should “comprehensively set forth
reasons for the weight assigned” to that opinion, considering the factors identified in the SSA
regulations. Halloran, 362 F.3d at 33; see also 20 C.F.R. § 404.1527(c). These same factors are
to be considered when evaluating other medical opinion evidence.
A number of the reasons the ALJ provided to discount Dr. Tabershaw’s opinion are flawed
and, at the very least, require further explanation from the ALJ.
ALJ Kilgannon’s first reason for affording limited weight to Dr. Tabershaw’s opinion is
“that it was offered only a few months after surgery” and is inconsistent with Dr. Tabershaw’s
later treatment records. (Tr. 22.) However, all three medical opinions in the record regarding
Plaintiff’s shoulders and wrist were performed in the nine weeks following Plaintiff’s January 23,
2015 surgery, with Dr. Tabershaw’s being the latest examination. Dr. Pollack examined Plaintiff
on February 9, 2015, and the ALJ afforded her opinion good weight. (Tr. 23.) Dr. Desai examined

Plaintiff on February 16, 2015, and the ALJ afforded his opinion little weight. (Id.) Dr. Tabershaw
completed the upper extremity questionnaire on March 28, 2015, which the ALJ afforded limited
weight. (Id.) The ALJ fails to explain why he accorded Dr. Tabershaw’s opinion “limited weight”
because it was performed “only” two months after surgery but gave “good weight” to Dr. Pollack’s
opinion, which was performed only one month after surgery. In assessing Dr. Pollack’s opinion,
the ALJ failed to address whether the timing of Dr. Pollack’s examination affected his analysis, as
it did with Dr. Tabershaw’s opinion.
Second, with regard to Dr. Tabershaw’s later treatment records, the ALJ failed to address
whether he considered the records concerning Plaintiff’s right shoulder. (Id.) The ALJ is correct

that some of Dr. Tabershaw’s later treatment records from May 2016 through December 2016
following the surgery suggest some relief in Plaintiff’s left shoulder. (See, e.g., Tr. 410 (May 18,
2016 record showing that Plaintiff reported that his left shoulder was doing well post-surgery and
it was tolerable); Tr. 421 (September 15, 2016 record showing Plaintiff reported that his left
shoulder was better but he still had pain); Tr. 427 (December 1, 2016 record showing that Plaintiff
reported that he felt that his left shoulder was still the same but the pain had diminished by 50%)).
However, the treatment records also suggest a worsening of Plaintiff’s right shoulder. (See, e.g.,
Tr. 407 (June 21, 2016 record showing that Plaintiff reported that he had pain down his right arm
when he turned to the right and could not turn all the way to the right); Tr. 424 (November 1, 2016
record showing that Plaintiff reported that his right shoulder was becoming progressively more
painful); Tr. 427 (December 1, 2016 record showing that Plaintiff continued to experience pain in
his right shoulder); Tr. 429 (March 2, 2017 record showing that Plaintiff expressed significant pain
in his right shoulder and that he wanted to consider surgery)). Additionally, on September 15,
2016, Dr. Tabershaw opined that, while the left shoulder surgery provided Plaintiff with some

relief, it was a mistake not to have taken the bicep tendon during the surgery, as Plaintiff’s
symptom where predominately bicipital, and that in the future he might need a biceps release on
the left side. He also found that with respect to the right shoulder, Plaintiff would probably benefit
from surgery. (Tr. 421.) At the time of the hearing, Plaintiff stated he was waiting to have surgery
on his right shoulder until after a surgery for his colon. (Tr. 42.) The ALJ also did not explicitly
address that while part of the upper extremity questionnaire is focused on Plaintiff’s left shoulder
injury, (Tr. 357 (identifying the left shoulder as the location of the injury)), other parts of the
questionnaire are based on limitations in Plaintiff’s left and right upper extremities (Tr. 361
(Plaintiff had moderate limitations in the left and right arms for reaching).) It is not clear from the

questionnaire whether Dr. Tabershaw is referring to both the left and right shoulder, or just the left
in the lifting/carrying portion. (Tr. 359.) The ALJ failed to explain whether he took into account
the later treatment records regarding the right shoulder and the portions of the questionnaire
concerning the right shoulder, and if not, his reasons for not doing so.
The ALJ’s third reason for affording limited weight is that the opinion is inconsistent with
treatment records that state that Plaintiff is right hand dominant. (Tr. 22.) However, the ALJ did
not explain how this fact affected his analysis of Dr. Tabershaw’s opinion. Plaintiff’s disability
claim alleges injuries to both shoulders, not only the left, and, as noted, above the upper extremity
questionnaire is based on both the left and right shoulders.
Fourth, the ALJ reasoned that Dr. Tabershaw’s March 28, 2015 opinion was “inconsistent
with the [April 27, 2015] notation that [Dr. Tabershaw] felt the claimant could return to sedentary
duty.” (Tr. 22.) However, the notation that the ALJ references states: “Disability: 100% at this
time. I anticipate being able to return him to sedentary duty, which his job is not.” (Tr. 371.) Dr.
Tabershaw did not say that Plaintiff could return to sedentary duty at the time he wrote the note,

but rather that he anticipated returning Plaintiff to sedentary duty at some unspecified point in the
future. Additionally, as explained further below, even if Plaintiff’s left shoulder issues did
sufficiently resolve at some point, the ALJ failed to consider, whether a closed period of disability
existed here.
Given the above, the ALJ failed to provide “good reasons” to afford Dr. Tabershaw’s
opinion only “limited weight.” Since ALJ Kilgannon failed to properly assess the opinions of
Plaintiff’s treating physician, Dr. Tabershaw, the Court offers no opinion as to the weight he
assigned to the consultative examiner, Dr. Pollack, or Plaintiff’s internist, Dr. Desai, because such
weight may change on remand. Accordingly, upon remand, the Commissioner must assess, and

adequately explain, the proper weight for each of the medical opinions in the record according to
the treating physician rule and determine if such an assessment requires reconsideration of
Plaintiff’s RFC. The Commissioner should also consider whether it is necessary to conduct a more
recent medical examination regarding Plaintiff’s physical limitations, since all three medical
opinions were given in the nine weeks immediately following Plaintiff’s surgery and Plaintiff
testified at the hearing that he might have surgery on his right shoulder in the near future.
4. The ALJ Failed to Consider Whether There Was a Closed Period of Disability

“A closed period of disability refers to when a claimant is found to be disabled for a finite
period of time which started and stopped prior to the date of the administrative decision granting
disability status.” Carbone v. Astrue, No. 08-CV-2376, 2010 WL 3398960, at *13 n.12 (E.D.N.Y.
Aug. 26, 2010) (internal citation and quotation marks omitted). In determining that a claimant
improved from his previously disabled state, an ALJ must base his opinion on substantial evidence
using the medical improvement rule. Nascimento v. Colvin, 90 F. Supp. 3d 47, 53 (E.D.N.Y.
2015) (“[W]hen the Commissioner determines that a claimant is disabled only for a closed period,

such a finding must be demonstrated by substantial evidence of medical improvement in the
claimant’s impairment or combination of impairments such that the claimant is now able to engage
in substantial gainful activity.”).
The ALJ placed significance on Dr. Tabershaw’s treatment notes following the March 28,
2015 upper extremity questionnaire, showing some relief in Plaintiff’s left shoulder over time.
However, the ALJ did not state whether he considered if Plaintiff was entitled to a closed period
of benefits for the time prior to his left should improving. Plaintiff’s alleged onset date was March
28, 2014, and Dr. Tabershaw completed the upper extremity questionnaire on March 28, 2015,
suggesting that Plaintiff’s left shoulder disability lasted for at least 12 months. According to the

treatment records, Plaintiff continued to have problems with his left shoulder until at least June
2015. (Tr. 381.) “[E]ven if substantial evidence supports a finding that [Plaintiff’s] symptoms
improved before the ALJ issued [his] decision, at which time [he] was no longer disabled,” the
ALJ should have at least considered whether Plaintiff was entitled to a closed period of benefits
for some period of time following the alleged onset date. Smith v. Berryhill, No. 17-CV-5639,
2018 WL 5619977, at *12 (S.D.N.Y. Aug. 10, 2018), report and recommendation adopted, 2018
WL 4565144 (S.D.N.Y. Sept. 24, 2018) (finding that “it was legal error—on this record—for the
ALJ not to consider a closed period of disability following the alleged disability onset date,” where
the evidence suggested Plaintiff’s symptoms from a work place injury lasted longer than 12
months, and directing the Commissioner to consider a closed period of disability on remand even
if he still found that Plaintiff recovered to the point she was no longer disabled prior to his
decision). Upon remand, even if the Commissioner still concludes that Plaintiff’s condition
improved by the time of his decision, the Commissioner should consider whether there was a
closed period of disability.

5. Challenge to ALJ Kilgannon’s Appointment
Plaintiff also argues that his case should be remanded because it was decided by an ALJ
who was not constitutionally appointed at the time of the decision.
Citing Lucia v. Securities Exchange Commission, in which the Supreme Court held that ALJ
officers employed by the Securities and Exchange Commission must be properly
appointed, 138 S. Ct. 2044, 2053 (2018), Plaintiff argues that the appointment of the ALJ was
unconstitutional. (Pl’s Br. at at 22-25.) Plaintiff acknowledges that he did not raise this issue
before the ALJ or Appeals Council, and is raising it for the first time in this appeal. (Id.)
Because this case is being remanding for further proceedings on other grounds, it is

unnecessary for the Court to address Plaintiff’s Lucia argument.
III. CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiff’s motion for judgment on the
pleadings; DENIES the Commissioner’s cross-motion; and REMANDS the case for further
proceedings consistent with this opinion. The Clerk of Court is respectfully directed to enter
judgment accordingly.
SO ORDERED.
Dated: October 7, 2020
Central Islip, New York
/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305016. Public record. Not legal advice.