# Pienkos v. Commissioner of Social Security

> District Court, E.D. New York · February 21, 2025

URL: https://www.frixlaw.com/law-library/cases/10806132

## Case

- **Court:** District Court, E.D. New York
- **Decided:** February 21, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10806132

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
THOMAS PIENKOS,

Plaintiff, MEMORANDUM & ORDER
21-CV-0223 (JS)
-against-

COMMISSIONER OF SOCIAL SECURITY,1

Defendant.
--------------------------------X
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10806132. Public record. Not legal advice.