Pienkos v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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THOMAS PIENKOS,

Plaintiff, MEMORANDUM & ORDER

21-CV-0223 (JS)

-against-

COMMISSIONER OF SOCIAL SECURITY,1

Defendant.

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APPEARANCES

For Plaintiff: Christopher J. Bowes, Esq.

54 Cobblestone Drive

Shoreham, New York 11786

For Defendant: Sarah E. Preston, Esq.

Special Assistant U.S. Attorney

United States Attorney’s Office

601 East 12th Street, Room 965

Kansas City, Missouri 64106-2898

SEYBERT, District Judge:

Plaintiff Thomas Pienkos (“Plaintiff”) brings this

action pursuant to Section 205(g) of the Social Security Act (the

“Act”), 42 U.S.C. § 405(g), challenging the denial of his

application for Social Security Disability Insurance Benefits by

the Commissioner of Social Security (the “Commissioner”2). (See

1 In accordance with Rule 25(d) of the Federal Rules of Civil

Procedure, the Clerk of Court is directed to amend the caption in

this action, generically identifying the Defendant as

“Commissioner of Social Security”.

2 Herein, the Court may refer to the Social Security Administration

as the “Agency”.

Compl., ECF No. 1, ¶ 1.) Pending before the Court are Plaintiff’s

Motion for Judgment on the Pleadings, and the Commissioner’s Cross-

Motion. (See Motion, ECF No. 12; see also Support Memo, ECF No.

13; Cross Motion, ECF No. 17; Cross-Support Memo, ECF No. 17-1;

Reply, ECF No. 19.) For the following reasons, Plaintiff’s Motion

is GRANTED in part and DENIED in part, and the Commissioner’s

Cross-Motion is GRANTED.

BACKGROUND3

I. Procedural History

On October 23, 2013, Plaintiff completed an application

for disability insurance benefits alleging disability as of

September 1, 2013, due to a cancerous blood disease/essential

thrombocythemia, a severe heart attack, osteomyelitis, and

depression. (R. 79-80.) After Plaintiff’s claim was denied, he

requested a hearing before an Administrative Law Judge (“ALJ”).

(R. 99-100.) On July 26, 2016, accompanied by a representative,

Plaintiff appeared for a hearing before ALJ Patrick Kilgannon.

(R. 56.) Vocational expert (“VE”) Dale Pasculli testified at the

hearing. (R. 70-77.)

3 The background is derived from the Administrative Transcript

filed by the Commissioner on September 1, 2021. (See ECF No. 9.)

For purposes of this Memorandum and Order, familiarity with the

administrative record is presumed. Hereafter, the Administrative

Transcript will be denoted “R.”

In a September 28, 2016 decision, the ALJ found Plaintiff

was not disabled. (R. 16-26.) On February 27, 2018, the Agency’s

Appeals Council denied Plaintiff’s request for review; therefore,

the ALJ’s decision became the final decision of the Commissioner

(hereafter, the “2016 Final Decision”). (R. 1-6.)

On April 4, 2018, Plaintiff initiated a civil action

challenging the 2016 Final Decision. (R. 707-709; see also Pienkos

v. Commn’r, No. 18-CV-2053, Compl. (E.D.N.Y. Apr. 4, 2018).) On

April 4, 2019, the District Court “SO ORDERED” the parties’

Stipulation regarding the reversal and remand of the 2016 Final

Decision. (R. 714-715.) In accordance with the terms of the

Stipulation, the ALJ was ordered to: (1) offer the Plaintiff the

opportunity for a new hearing; (2) take further action to complete

the administrative record; and (3) issue a new decision. (R. 715.)

Thereafter, the case was remanded back to an ALJ. (R. 722-725.)

On November 5, 2019, accompanied by a representative,

Plaintiff appeared for his remand hearing before the ALJ

(hereafter, the “2019 Disability Hearing”). (R. 658-660.) Dr.

Dorothy Kunstadt, a medical expert who had not examined Plaintiff,

testified at said Hearing (R. 660-696), as did VE Pasculli. (Id.)

Afterwards, on July 9, 2020, the ALJ requested the

professional opinion of Dr. Steven Shilling, a medical expert,

regarding Plaintiff’s disability claim; said request, in the form

of interrogatories, was accompanied by selected evidence from the

record. (R. 1453.) On July 13, 2020, Dr. Shilling provided the

requested opinion in the form of interrogatory responses

(hereafter, the “Shilling Opinion”). (R. 1454-1465.) Thereafter,

on July 20, 2020, the ALJ proposed to Plaintiff that the Shilling

Opinion be included in the record; Plaintiff was afforded the

opportunity to challenge the Shilling Opinion by way of a

supplemental hearing. (R. 1134-1135.) On August 4, 2020,

Plaintiff objected to the Shilling Opinion being admitted into the

record and requested “a supplemental hearing to question Dr.

Shilling’s qualifications and his opinion.” (R. 1153.) On August

28, 2020, Plaintiff renewed his objection to the inclusion of the

Shilling Opinion into the record:

The residual functional capacity assessment

posed to the vocational expert reflects Dr.

Steven Shilling’s opinion and we therefore

must renew our objection to your Honor’s

reliance on the residual functional capacity

assessment of Dr. Shilling. He is not

actively treating patients and the history

[of] disciplinary action against him by the

licensing board makes him unqualified to serve

as an expert. Moreover, his opinion was

explicitly limited to cardiology and he

advises that he cannot comment on hematology,

which is [Plaintiff’s] main problem.

(R. 1172-1173.) It is undisputed no supplemental hearing was

scheduled. (-Se-e- Support Memo at 21; Cross-Support Memo at 1, 2.)

Therefore, Plaintiff was unable to cross-examine Dr. Shilling.

(R. 1134, 1153.)

In a September 17, 2020 decision, once more the ALJ found

Plaintiff was not disabled (hereafter, the “2020 Decision”).

(R. 629-649.) In it, the ALJ “accorded great weight” to the

Shilling Opinion, concluding it was “consistent with the

consultative examining opinions and the expert cardiology

opinions.” (Id.) “Sixty days later, that decision became the

‘final decision’ of the Commissioner subject to judicial review.”

(Cross-Support Memo at 2 (citing 20 C.F.R. § 404.984).)

On January 14, 2021, Plaintiff initiated the instant

action. (See Compl.) Thereafter, on December 3, 2021, Plaintiff

moved for judgment on the pleadings. He “challeng[es] the

Commissioner’s final administrative decision that discounts the

opinions of his treating hematologist and cardiologists in favor

of [the Agency]’s medical advisors, none of whom have examined him

and none whose opinions rise to the level of substantial medical

evidence.” (Support Memo at 1.) Plaintiff argues “[b]ecause the

persuasive evidence of record demonstrates” he “lacks the capacity

to return to his past relevant work or perform an 8-hour workday,”

an order should issue directing the Commissioner “find him disabled

and entitled to disability benefits.” (Id.; see also id. at 25

(requesting case be remanded “for additional administrative

proceedings solely for calculation of disability benefits due”

Plaintiff).) In response, the Commissioner cross-moved for

judgment on the pleadings, acknowledging “remand is necessary due

to the ALJ’s procedural legal error,” but asserting “because

conflicts remain in the evidence -- specifically in the appropriate

weight to be assigned to the opinion of Dr. Shilling, one of

multiple opinions and other evidence supporting the finding of

non-disability -- remand for further administrative proceedings is

the proper remedy.” (Cross-Support Memo at 1, 24.) In reply,

Plaintiff contends, “[g]iven the persuasive proof of actual

disability outlined by [his] treating and examining physicians and

the repeated and unjustifiable delays visited upon [him] by the

Commissioner,” “an Order reversing the final decision by the

Commissioner and finding Plaintiff ‘disabled’ . . . and entitled

to disability benefits” is warranted. (Reply at 6.)

II. The Subject 2020 Decision

A. Plaintiff’s Testimonial Evidence

In support of his claim, Plaintiff testified at the 2019

Disability Hearing, stating, inter alia, the following. Plaintiff

was born in 1959, and was 60 years old when the 2019 Disability

Hearing was held. (R. 79, 671.) He completed college in 1986.

(R. 176.)

Plaintiff testified he had been unable to work since

September 1, 2013 due to his disability and the side effects from

his medication. (R. 672-681; see also R. 175 (Disability Report

listing all the physical and mental conditions limiting ability to

work: cancerous blood disease/essential thrombocythemia, severe

heart attack, osteomyelitis, depression).) Before September 1,

2013, Plaintiff worked as a vice president of operations at an IT

company, and then as a senior vice president of operations at a

large real estate company, which oversaw 16 luxury condominium

buildings in the New York City tri-state area, with approximately

500 employees under him. (R. 176, 648.) His was a high-stressed

job requiring him to work 50-to-70 hours a week. (R. 1086.) Among

other things, Plaintiff’s job: saw him lifting and carrying 10

pounds frequently and 20 pounds at times; required frequent (i.e.,

2.5 to 5.5 hours) standing, walking, sitting, balancing, and

bending (R. 294, 423); required travel to multiple properties to

ensure proper maintenance and conduct on-site inspection of

building systems (R. 294, 424); and, required occasional (i.e., 15

minutes to 2.5 hours) kneeling, crouching, crawling, reaching,

climbing, and driving (id.).

Concerning his limitations, Plaintiff claimed he had

problems standing or walking for “any length of time” due to

swelling and growths in his limbs. (R. 674-676.) He testified it

is “virtually impossible to stand up,” due to the infections and

swellings from the growths on his legs. (R. 680.) To combat the

swelling, Plaintiff explained he must lay on the floor with his

feet elevated up a wall. (R. 679.) Plaintiff further testified

his medication, Anagrelide, causes diarrhea every two-to-three

hours, thereby requires him to “stay close to a bathroom.”

(R. 677.) Moreover, due to tingling in his hands and feet,

Plaintiff claimed he did not sleep well, waking up every 90 minutes

to two hours, which contributes to his experiencing chronic

fatigue. (R. 675-678.)

B. Medical Evidence4

1. Dr. Dorothy Kunstadt’s Testimony

At the 2019 Disability Hearing, Dr. Kunstadt, a new

medical expert who had not examined Plaintiff, opined Plaintiff

did not meet the criteria for Social Security disability. (R. 664.)

While she acknowledged Plaintiff had functional limitations and

recommended he “stay away from heavy, physically, heavy work”, Dr.

Kunstadt stated Plaintiff “can do . . . light work and moderate

work.” (R. 664, 666.) Despite rendering this opinion, Dr. Kunstadt

admitted she was not familiar with the side effects of Anagrelide.

(R. 666.)

2. The Shilling Opinion

After the hearing, the ALJ relied upon Dr. Shilling’s

interrogatory responses, i.e., the Shilling Opinion, in rendering

the 2020 Decision. (R. 646.) In his responses, Dr. Shilling noted

Plaintiff’s ejection fraction was normal and he performed

above-average for his age group in his exercise stress testing.

4 Because Plaintiff’s disability claim had been previously

remanded, there was already prior medical expert testimony in the

record. (R. 660.)

(Id.) Dr. Shilling concluded Plaintiff did not have ischemia or

arrhythmias during testing and his “generally asymptomatic status

on examination does not support a showing that it caused functional

limits.” (Id.) As to Plaintiff’s myocardial damage, Dr. Shilling

described it as “minimal.” (Id.)

Dr. Shilling opined Plaintiff could: perform an eroded

range of light exertional work, sit for two hours, stand for one

hour, and walk for 30 minutes at one time; occasionally climb ramps

and stairs, crouch, and crawl; and frequently balance, stoop, and

kneel. (R. 647.) However, the Doctor also determined Plaintiff

be prohibited from climbing ladders or scaffolds. (Id.)

C. The VE’s Testimony

The VE who previously testified at Plaintiff’s prior

disability hearing, confirmed at the 2019 Disability Hearing that

Plaintiff’s past work as a vice president of operations was

sedentary, and that his prior role as manager was light. (R. 685.)

Plaintiff’s counsel questioned the VE whether an individual who

“had to elevate their legs” or “needed to be close to a bathroom

for a period of two to three hours a day” would be affected in

“their ability to perform past relevant work.” (R. 689-692.) To

both inquiries, the VE testified, “Yes, they will be unable to

perform it.” (Id.)

D. The ALJ’s 2020 Decision

As stated supra, Plaintiff objected to the ALJ’s

consideration of the Shilling Opinion. (See R. 1153 (citing R.

1137-1152).) In overruling Plaintiff’s objection to the Shilling

Opinion, the ALJ included the following preface in his 2020

Decision:

The undersigned has considered counsel’s

objection to Dr. Shilling’s opinion based upon

his area of expertise, and his declination to

assess non-cardiac side effects of the

claimant’s thrombocytopenia medication. Dr.

Shilling is currently qualified as a licensed

cardiologist, and provided a curriculum vitae

outlining his education and work experience.

He specifically restricted his opinion to

cardiac matters within the scope of his

expertise. His opinion is generally

consistent with those of Drs. Galst and

Kunstadt and supported by detailed cites to

the record. It is one of many components

considered in formulating the residual

functional capacity.

(2020 Decision at 1-2 (R. 629-630) (emphasis added).) The ALJ

“accorded great weight” to the Shilling Opinion, concluding it was

“consistent with the consultative examining opinions and the

expert cardiology opinions.” (Id. at 19 (R. 647).)

As to Plaintiff’s complaints regarding the side effects

of Anagrelide, the ALJ was not persuaded they warranted finding

Plaintiff was disabled. (See, e.g., 2020 Decision at 19-20 (R.

647-648).) His determination was based in part upon Dr. Kunstadt’s

opinion:

Dr. Kunstadt listened to the claimant testify

at length, and maintained her opinion, noting

that his severe impairments did not typically

cause the symptoms he testified to, and that

they were not generally reflected in

complaints to his practitioners with the

extremity he described in the hearing. Her

opinion was well supported by an explanation

and a review of the complete record to that

point, and comports with the other function by

function analyses of record. It is entitled

to significant weight.

(Id. at 18 (R. 646) (emphasis added).) The ALJ further elucidated:

The claimant stated that he needs to be near

a bathroom for three hours after each of his

twice-daily doses of anagrelide, but he rarely

complained of this side effect at all in the

treatment setting, and never described it at

this frequency or intensity to his

practitioners. It is noteworthy that the

claimant was continued on maximal doses of

medication during the long periods where he

denied the side effects he alleges primarily

debilitate him. He was also not offered any

adjuvant therapy to ease them.

(Id. at 19 (R. 647).) In sum, the ALJ determined Plaintiff

retained an RFC for light work, stating:

[t]o the extent the claimant experiences

better-documented side effects from his

medications such as lightheadedness, or the

growth on his left foot, or insomnia, he has

been limited to an eroded range of light

exertional work where he is mostly seated,

with reduced standing and walking. There is

no gait or strength impairment to substantiate

this but the claimant’s description of fatigue

is credible and has been exertionally

addressed. This also accounts for bouts of

diarrhea to the minimal extent they are

reflected in the record. Joint pains and

infrequent lesions have been accommodated

through postural, manipulative, and

environmental limits. Potential balance and

fall risks have been addressed. This residual

functional capacity accounts for all of the

claimant’s stated symptoms, but only to the

extent they have an established presence in

the medical record.

(Id. at 20 (R. 648).) The ALJ found Plaintiff’s RFC to be

“consistent with and supported by the observations of treating

sources in the medical records, the opinions to the extent they

were accorded weight, and the claimant’s own statements regarding

daily activities and abilities, to the extent they were found

consistent with the medical evidence.” (Id.)

DISCUSSION

I. Standard of Review

In reviewing a final decision of the Commissioner, a

district court must “conduct a plenary review of the administrative

record to determine if there is substantial evidence, considering

the record as a whole, to support the Commissioner’s decision and

if the correct legal standards have been applied.” Rucker v.

Kijakazi, 48 F.4th 86, 90–91 (2d Cir. 2022) (quoting Estrella v.

Berryhill, 925 F.3d 90, 95 (2d Cir. 2019)). District courts will

overturn an ALJ’s decision only if the ALJ applied an incorrect

legal standard, or if the ALJ’s ruling was not supported by

substantial evidence. See id. (citing Talavera v. Astrue, 697

F.3d 145, 151 (2d Cir. 2012)). “[S]ubstantial evidence . . . means

such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Selian v. Astrue, 708 F.3d

409, 417 (2d Cir. 2013) (quoting Richardson v. Perales, 402 U.S.

389, 401 (1971)).

II. The Instant Case

Here, the Parties agree that remand is necessary; the

only issue is whether the remand should be for a determination of

benefits only, as advocated by Plaintiff (see Support Memo at 25),

or for further administrative proceedings, as requested by the

Commissioner (see Cross-Support Memo at 24-25). For the reasons

that follow, the Court is remanding this case for further

administrative proceedings.

Recently, this Court remanded another Social Security

disability case to the Commissioner for further administrative

proceedings. See Cudak v. Comm’r of Soc. Sec., No. 21-CV-1250,

2025 WL 341930 (E.D.N.Y. Jan. 30, 2025). In doing so, the Court

stated, “A remand solely for the calculation of benefits is ‘an

extraordinary action and is only proper when further development

of the record would serve no purpose.’” Id. at *2 (quoting Rivera

v. Barnhart, 379 F. Supp. 2d 599, 604 (S.D.N.Y. 2005)); see also

Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999) (stating remand

for the calculation of benefits is appropriate where the Court

“ha[s] no apparent basis to conclude that a more complete record

might support the Commissioner’s decision”)). Moreover, this

Court observed: “[W]here, as here, the ‘evidence in the record is

mixed’ as to a Plaintiff’s disability or ‘level of functioning,’

such evidence is for the ALJ to evaluate on remand, not the

District Court.” Id. (citing Murphy v. Saul, No. 20-CV-261, 2021

WL 1318044, at *1 (E.D.N.Y. Apr. 8, 2021) (finding remand solely

for the calculation of benefits inappropriate “where the evidence

in the record [was] mixed as to when the claimant became

disabled”)). Similarly, “[s]uch a remedy is only appropriate ‘when

the record provides persuasive proof of disability and a remand

for further evidentiary proceedings would serve no purpose.’”

Patel v. Colvin, No. 10-CV-4617, 2013 WL 387234, at *10 (E.D.N.Y.

July 25, 2013) (quoting Pratts v. Harris, 626 F.2d 225, 235 (2d

Cir. 1980)).

Relatedly, this Court has also remanded a Social

Security disability case back to the Commissioner where the ALJ

did not properly develop the record, i.e., discounting a treating

physician’s medical opinion where the doctor failed to include a

function-by-function analysis in reaching his medical opinion.

See Kelly v. Comm’r of Soc. Sec., No. 20-CV-5318, 2024 WL 5120051,

at *12 (E.D.N.Y. Dec. 16, 2024); see also generally Daniela B. v.

Kijakazi, 675 F. Supp. 3d 305, 316 (E.D.N.Y. May 30, 2023)

(explaining ALJ has an “affirmative duty to recontact a medical

expert if an ALJ makes an initial determination that a medical

expert’s opinions are vague or appear to be inconsistent with their

examination notes”).

In the instant case, upon review of the Parties’

submissions, the Administrative Transcript, and the 2020 Decision,

the Court does not find persuasive proof of disability, thereby

warranting a remand solely to calculate benefits. Rather, at best,

the record evidence is mixed. In that vein, it also appears the

ALJ did not properly develop the record, as is his duty. The Court

highlights two examples. First, as to Dr. Gabig: The ALJ stated,

inter alia, that, in November 2016, Dr. Gabig noted Plaintiff had

many significant side effects from his medications (see 2020

Decision at 18 (R. 646)), to which the ALJ gave limited weight.

The ALJ also stated that, in 2018, Dr. Gabig noted Plaintiff was

suffering from Anagrelide “toxicity symptoms consisting of

diarrhea, anorexia, weight loss, and light headedness”, to which

notation the ALJ gave short shrift, further stating, “the claimant

consistently denied lightheadedness at other visits, and did not

mention diarrhea to [Dr. Gabig] for years before this notation.”

(Id. at 15.) At a minimum, the term “toxicity” suggests a build-up

over time; given Dr. Gabig’s 2016 observation regarding

Plaintiff’s medications, the Doctor’s subsequent and consistent

2018 observation should have prompted some follow-up with the

Doctor to provide, at a minimum, clarity as to his opinions. See,

e.g., Kelly, 2024 WL 5120051, at *12.

Second, as to Dr. Jeremias: The ALJ afforded the

Doctor’s November 2016 opinion that Plaintiff “could not return to

his ‘stressful and demanding work environment,’” in which the

Doctor further opined Plaintiff “had ‘severe limitations’ in

connection with his medical conditions and medications”, “minimal

weight” since Dr. Jeremias did “not actually describing any of

them in a function by function by function analysis.” (2020

Decision at 18 (R. 646).) As this Court has stated:

“Several district courts in this Circuit have

remarked that a treating physician’s failure

to include a function-by-function analysis in

reaching a medical opinion is ‘not a good

reason for discounting’ that opinion.”

Patrick B. v. Comm’r of Soc. Sec., No.

3:19-CV-1697, 2021 WL 1100177, at *16 (D.

Conn. Mar. 23, 2021) (citing Parker v. Comm’r

of Soc. Sec. Admin., No. 18-CV-3814, 2019 WL

4386050, at *8 (S.D.N.Y. Sept. 13, 2019);

Moreau v. Berryhill, No. 3:17-CV-0396, 2018 WL

1316197, at *11–13 (D. Conn. Mar. 14, 2018);

Mondschein v. Saul, No. 3:19-CV-1019, 2020 WL

4364058, at *8 (D. Conn. July 30, 2020)).

“Instead, an ALJ might ask that treating

physician to supplement the record with a more

specific opinion.” Id.

Kelly, 2024 WL 5120051, at *12 (further citation omitted). Here,

the ALJ sought no such supplement; hence, upon the record presented

there is no good reason for the ALJ to have discounted Dr.

Jeremias’ November 2016 opinion. Thus, the need for the ALJ to

further develop the record provides an additional basis for

remanding this case for further administrative proceedings.

“Such proceedings shall be conducted within 120 days of

this Order. If, upon remand, the ALJ denies Plaintiff’s claim,

the Commissioner shall issue a final decision within 60 days of

any appeal of that denial.” Cudak, 2025 WL 341930, at *2.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED:

I. Plaintiff’s Motion (ECF No. 12) is GRANTED in part and DENIED

in part, and

II. The Commissioner’s Cross-Motion (ECF No. 17) is GRANTED,

such that the ALJ’s judgment is reversed, and this matter is

REMANDED for proceedings consistent with this Memorandum and

Order.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: February 21, 2025

Central Islip, New York