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United States District Court, S.D. New York

December 6, 2004.

JO ANN B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn1] [fn1] Gabriela Leal, a Fall 2004 intern in my Chambers and a second-year law student at CUNY Law School, provided substantial assistance in the research and drafting of this Opinion and Order.


Plaintiff Ira Kleinberger ("Kleinberger") brought this action pursuant to 42 U.S.C. § 405(g) to challenge the final determination of defendant Jo Ann B. Barnhart, the Commissioner of Social Security ("the Commissioner"), that he was not disabled within the meaning of the Social Security Act. Kleinberger now moves and the Commissioner cross-moves for judgment on the pleadings. The parties disagree as to whether the Commissioner's denial of benefits was supported by substantial evidence. For the reasons set forth below, Kleinberger's motion is denied and the Commissioner's cross-motion is granted.


  A. Education and Employment Evidence

  Kleinberger, who is presently sixty-two years of age, obtained a bachelor's degree in business administration from Pace University. Throughout his career, Kleinberger was employed in the ladies footwear industry. Early on, Kleinberger worked for fifteen years as a buyer for Montgomery Ward. When Montgomery Ward relocated their offices to Chicago, Kleinberger began to work as a shoe salesman. He was employed by one company for two years and another for eight years. He then began to work for his most recent employer, a wholesale importer of footwear, for whom he initially worked as a salesman. After approximately one year, Kleinberger was promoted to sales manager, a position he held from June 1984 until January 1990. He was again promoted in April 1990 to vice-president of sales, a position he held until he was laid off in August 1999 when his employer was bought-out and was restructured. According to Kleinberger, his duties did not substantially change following his second promotion.

  In his Disability Report Adult, Kleinberger described his responsibilities as follows: "Traveled throughout the US selling shoes, managed sales force, attended trade shows." Rec. 111 (all caps removed); see also Rec. 30 (describing his duties as "[s]ell shoes, travel to customers, handle trade shows throughout country, manage salesman."). Nevertheless, Kleinberger's positions required a fairly substantial amount of physical activity, given that he had to lift 80 to 100 pound bags of shoes, present large numbers of samples to customers and at trade shows, drive long distances, etc. Nevertheless, a portion of Kleinberger's duties were also managerial in nature. For example, he reviewed resumes of salesperson applicants, conducted an initial training session with the sales force, reviewed reports of sales, etc.

  B. Medical Evidence

  1. Kleinberger's Complaints

  Kleinberger bases his eligibility for Social Security Disability Insurance Benefits ("DIB") on his total hearing loss in his left ear, type 2 (i.e., non-insulin dependent) diabetes, hypertension, equilibrium problems, and dizziness. In his Disability Report Adult, Kleinberger explained that "diabetes causes me to tire easily, hearing loss makes it difficult to hear customers. Equilibrium problems causes [sic] me to lose my balance and I get dizzy." Rec. 110 (all caps removed). At the administrative hearing, Kleinberger described that in November 1999 he "developed the ear problem, [which] caused dizziness and balance problems." Rec. 40. Kleinberger further stated that he suffers from fatigue from his medications, as well as urination problems, which require him to go to the bathroom at least ten times a day, and his feet swell in the afternoon. As for his limitations, Kleinberger reported that he can only stand for an hour or two at a time, take short walks, drive short distances during the day light hours, and that he can only lift small weight amounts, e.g., 10 or 20 pounds. Nonetheless, Kleinberger reported in his DIB application materials that he spends his day reading, using the computer, watching television, exercising, visiting friends and his children, and going out to dinner.

  2. Medical History and Diagnoses

  Kleinberger became a patient of Dr. Scott Bernstein ("Dr. Bernstein"), Kleinberger's treating physician, in June 1998. Dr. Bernstein diagnosed Kleinberger as suffering from hypertension. On November 16, 1999, Kleinberger reported to Dr. Bernstein that his ears were clogged and that he felt dizzy. Dr. Bernstein initially believed that the condition was caused by a viral infection. However, Dr. Bernard Berson ("Dr. Berson") examined Kleinberger shortly thereafter and performed an audiogram, which indicated that Kleinberger had suffered a profound loss of hearing in the left ear. This was confirmed by the exam, testing, and diagnosis of Dr. Lawrence Z. Meiteles ("Dr. Meiteles"), an ear, nose and throat specialist. Indeed, all examining medical personnel concurred that Kleinberger is deaf is his left ear and that he suffers from diabetes and hypertension.

  Kleinberger's hearing loss resulted in additional problems, at least initially. During his initial examination with Dr. Meiteles on November 29, 1999, Kleinberger reported to dizziness, as well as frequent urination and thirst. Dr. Meiteles referred Kleinberger for balance testing, which revealed a 37% left weakness, and recommended vestibular rehabilitation therapy. Dr. Meiteles concluded that Kleinberger sustained a left labyrinthitis, which is an inflammation of the inner ear that causes dizziness.*fn3 Notably, during his January 6, 2000 visit with Dr. Bernstein, Kleinberger reported "no more dizziness — gradually resolved — 4 wks ago." Rec. 144.

  In addition, Kleinberger reported to Dr. Thomas King ("Dr. King"), a consulting physician, that "he has difficulty with hearing in room with a lot of background noise" and that this interfered with his ability to attend meetings. Rec. 164. This difficulty was confirmed by Dr. Habib Jamal ("Dr. Jamal"), a consulting ear, nose, and throat specialist who conducted an audiological examination on October 26, 2000. Dr. Jamal noted that "patient's [sic] with sudden onset of profound unilateral hearing loss have difficulty in situations, such as in the presence of background noise or multiple speakers. . . ." Rec. 167. Kleinberger also complained of fatigue and imbalance to Dr. Jamal.

  Kleinberger was also seen by Dr. Mark Fagelman ("Dr. Fagelman"), a urologist, on June 11, 1999, who performed a variety of tests. Dr. Fagelman diagnosed Kleinberger with benign prostatic hypertrophy, an enlargement of the prostrate gland, which is "one of the common complaints of older men who visit their primary care physicians."*fn4 There are two other medical conditions discussed in the record, one of which occurred prior to and the other subsequent to Kleinberger's application of benefits. In 1991, Kleinberger underwent a right nephrectomy (removal of the kidney) due to renal cancer. A follow-up renal sonogram preformed on September 19, 2000 was negative and revealed no evidence of mass. On May 11, 2001, Dr. Michael Swirsky diagnosed Kleinberger with a laryngeal polyps, which according to Kleinberger's hearing testimony, was removed sometime thereafter.

  3. Functional Capacity Assessments

  Several different physicians evaluated Kleinberger's functional capacity for his DIB application. Dr. Bernstein, Kleinberger's treating physician, prepared two such evaluations. In one, Dr. Bernstein reported that Kleinberger was able to stand, walk, sit, push, and pull without limitation, and that he could lift and carry occasionally. In the other evaluation, Dr. Bernstein opined that Kleinberger could lift and carry a maximum of 10 pounds due to his disequilibrium, hypertension, diabetes, and lethargy, stand or walk for a total of 6 hours or 2 uninterrupted hours, kneel, stoop, or balance for one-third of the day, and crawl for two-thirds of the day. Dr. Bernstein concluded that Kleinberger was unable to climb or crouch due to his disequilibrium, but that his ability to sit, reach, handle, see, speak, or feel, was not impacted by any of his medical conditions.

  Dr. King found that Kleinberger could speak, handle, sit, walk, and engage in manipulative activities without limitation, but that his ability to lift and carry heavy objects was limited moderately because of his hypertension and imbalance. Kleinberger told Dr. King that other than his difficulty hearing in the presence of background noise, he was able to carry out his daily routine.

  Finally, Kleinberger's Physical Residual Functional Capacity Assessment, which was prepared by a representative of the Social Security Administration following an examination of Kleinberger and review of his medical records, indicates that he had no postural, manipulative, or visual, communicative, or environmental limitations, that he could lift 50 pounds occasionally and 25 pounds frequently, that he push or pull without limitation, and that he could sit or stand for 6 hours in an 8-hour workday. The symptom section of this form indicates that Kleinberger's hearing loss was fully supported, but that his complaint of equilibrium problems was not. C. Procedural History

  Kleinberger's April 24, 2000 application for DIB was initially denied on August 30, 2000. Kleinberger subsequently requested a hearing, which was held in White Plains, New York on September 24, 2001 before Administrative Law Judge Herbert Rosenstein ("the ALJ"). Kleinberger, represented by counsel, testified at the hearing, as did Andrew Pasternak ("Pasternak"), a vocational expert. The ALJ considered Kleinberger's application de novo and on October 2, 2001 concluded that Kleinberger was not disabled. Kleinberger appealed, but on December 23, 2003 the ALJ's decision became the Commissioner's final decision when the Appeals Council denied review. This appeal followed.


  A. Applicable Legal Standards

  Kleinberger contests the Commissioner's determination that he is not disabled and thus not entitled to DIB. The Social Security Act defines the term disability as an "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). A person is disabled "only if 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 423(d)(2)(A).

  The Commissioner employs a five-step approach to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The burden of proof resides with the claimant during the first four steps, after which it shifts to the Commissioner for the fifth step. First, the Commissioner must determine whether the claimant is doing substantial gainful work. If not, in the second step, the Commissioner considers the severity of the claimant's medical impairment and whether the claimant meets the durational requirement of 20 C.F.R. § 404.1509. If the claimant is not engaged in substantial gainful activity and suffers from an impairment that prevents employment, the analysis proceeds to the third step in which the Commissioner determines whether the claimant's impairment meets or equals the criteria of an impairment listed in Appendix 1*fn5 of the regulations. Fourth, if the claimant does not have a listed impairment, the Commissioner evaluates the claimants' past relevant work. If the claimant cannot do past relevant work, in the fifth step, the Commissioner examines his/her residual functional capacity, together with his/her age, education, and work experience, to determine if s/he can make an adjustment to other work.

  The claimant may seek judicial review of an unfavorable decision by the ALJ. Under 42 U.S.C. § 405(g), "the court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." However, the Court may "set aside the ALJ's decision only where it is based upon legal error or is not supported by substantial evidence." Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1988). Here, neither party contends that the ALJ failed to apply the correct legal principle and it is evident that the ALJ did apply the correct legal standard from a review of his decision. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987) (noting that before applying the substantial evidence standard, the Court must first review the ALJ's decision for correct legal principles).

  The Court must therefore examine the evidence. Such an examination is not a de novo review. Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); see also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982) ("We would be derelict in our duties if we simply paid lip service to [the substantial evidence] rule, while shaping our holding to conform to our own interpretation of the evidence."). Instead, our review of the denial of Social Security benefits is confined to whether there is "substantial evidence" to support the Commissioner's decision. 42 U.S.C. § 405(g). The Supreme Court has defined substantial evidence as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). If the Commissioner's determination as to any fact is supported by substantial evidence, the decision shall be conclusive. Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). Therefore, the Court must affirm the Commissioner's decision if there is substantial evidence to support it, even if the Court might have ruled differently in the first instance. B. The ALJ's Decision

  The ALJ engaged in the five-step analysis and determined at the fourth step that Kleinberger was not disabled. The ALJ found that "[t]he medical evidence indicates that the claimant suffers from acute hearing loss in the left ear; non-insulin dependent diabetes mellitus; hypertension; and he is status-post nephrectomy for renal cancer in 1991," but that none of these impairments are "severe enough to meet or medically equal one of the impairments listed in Appendix 1." Rec. 17. Based on the testimony of both Kleinberger and the vocational expert, Pasternak, and the available medical evidence, the ALJ concluded that Kleinberger is capable of performing his past relevant work of sales manager, positions which the ALJ concluded were abundant in the national economy. The ALJ's decision was based primarily on two factors. First, the ALJ rejected many of Kleinberger's complaints and concluded that his "allegations of totally disabling symptoms and limitations cannot be accepted." Rec. 19. Instead, the ALJ found that Kleinberger's "main impairment was unilateral hearing loss" and that his hypertension prevented heavy lifting, but that Kleinberger could engage in sedentary work, given that his "non-exertional postural and environmental limitations [were] slight." Rec. 19. Second, the ALJ relied on Pasternak's opinion, who stated, in response to a hypothetical question posed by the ALJ, that Kleinberger could return to his prior occupation as a sales manager, although it would have to be in related industries, such as apparel, because of the lifting requirements in the footwear industry. According to Pasternak, the Census Bureau has documented over three million such positions in the national economy, with 52,000 in New York City and Westchester.

  Here, Kleinberger argues that the ALJ erred in his decision that Kleinberger could perform relevant past work because his prior positions were not sedentary in nature, but rather required a medium to heavy level of exertion. According to Kleinberger, his prior positions were not those of a sales manager, but rather, those of a salesman. This, however, is belied by Kleinberger's own statements on his application materials and at the administrative hearing. E.g., Rec. 111 (listing job titles as "VP Sales" and "Sales Manager" and describing duties as, inter alia, "managed sales force") (all caps removed); Rec. 30 (testifying that he was "a sales manager and a salesman for a shoe wholesale company"). The ALJ and the vocational expert both recognized that, as Kleinberger testified, his duties at his last two positions were mixed in that he was responsible for both sales and managerial tasks. Indeed, Pasternak explicitly recognized this difference and classified the sales manager position as skilled and sedentary and the salesman position as semi-skilled and light. Nonetheless, Pasternak opined and the ALJ decided that Kleinberger could return to either of his prior positions, so long as it was in an industry that did not require the same amount of heavy lifting.

  This finding is consistent with the opinions of both Kleinberger's treating physician and the consulting physicians, all of whom were of the opinion that Kleinberger was restricted only in the amount of lifting and his ability to climb or crouch. Even upon noting his difficulty with hearing in the presence of background noise or multiple speakers, all of the physicians concluded that Kleinberger could sit, stand, walk, speak, see, reach, and engage in manipulative activities with only minor limitations and could engage in light to moderate lifting. The ALJ's decision is further bolstered by Kleinberger's own account of his limitations and activities. Kleinberger reported to Dr. Dr. King that other than his difficulty hearing in the midst of background noise, he was otherwise able to carry out his normal daily routine. At the hearing, Kleinberger testified that he was able to talk and visit with friends and relatives, drive short distances during the daytime, use the computer, read, watch television, and exercise. It therefore appears that Kleinberger did not have any physical condition or illness that would impair his ability to perform relevant past work.

  Nonetheless, Kleinberger argues that his medical conditions, including his loss of hearing, diabetes, dizziness, disequilibrium, fatigue, frequent urination, swelling of his feet, blurry vision, and propensity to perspire upon exertion prohibit him from performing his prior work. This contention is, to some extent, supported by the vocational expert's opinion. When posed with a second hypothetical, Pasternak opined that if these symptoms were present, together with his partial deafness, diabetes, and hypertension, then Kleinberger would be unable to perform even sedentary work "[b]ecause of the need to provide concentration and sustain work pace without frequent breaks." Rec. 60. However, the ALJ did not credit these allegations. See Rec. 19 ("the claimant's allegations of totally disabling symptoms and limitations cannot be accepted"). An ALJ is entitled to make credibility determinations and to accept or reject a claimant's allegations in part or in whole. Kraemer v. Apfel, No. 97 Civ. 8638, 1999 WL 14684, at *3 (S.D.N.Y. Jan. 14, 1999); Ghazibayat v. Schweiker, 554 F. Supp. 1005, 1010 (S.D.N.Y. 1983). Indeed, as I have previously observed, under the Social Security Act, "an individual's statements of pain or other symptoms alone cannot establish disability. Instead, there must be some type of objective medical findings that show the existence of a medical condition, which could reasonably be expected to cause the pain alleged for disability to be established." Miranda v. Apfel, No. 99 Civ. 10050, 2000 WL 1056325, at *7 (S.D.N.Y. July 31, 2000) (Baer, J.) (citing 42 U.S.C. § 423(d)(5)(A); Gallagher v. Schweiker, 697 F.2d 82, 94 (2d Cir. 1983)). Here, the symptoms and conditions the ALJ discredited were not supported by such objective evidence. Even if they had been, the ALJ's evaluation would nevertheless stand because "once the Court finds that there is substantial evidence supporting the Commissioner's decision, that decision must be upheld even if there is also substantial evidence supporting the plaintiff's position." Santiago v. Apfel, No. 98 Civ. 9042, 2000 WL 488467, at *3 (S.D.N.Y. April 25, 2000) (Baer, J.) (citing DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)).

  Finally, even if the ALJ's decision that Kleinberger could perform relevant past work at the fourth stage of the 5-step analysis, Kleinberger's claim would have failed at the fifth stage. Kleinberger has a Bachelor's Degree in Business Administration, garnered significant work experience in the footwear industry, having worked as a buyer, salesman, sales manager, and vice-president, and was employed with the same company for ten years. Kleinberger's "age, education and work experience," coupled with the medical evidence and the vocational expert's testimony, make it clear that Kleinberger's work experience can be transferred to other phases of the retail sector in the economy. Despite his limitations, I agree with the ALJ that Kleinberger's impairments do not inhibit him from performing the requirements of sedentary work.


  For the foregoing reasons, Kleinberger's motion is denied and the Commissioner's motion is granted. The Clerk of the Court is instructed to close this motion and any other open motions and remove this case from my docket.


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