United States District Court, S.D. New York
December 6, 2004.
IRA KLEINBERGER, Plaintiff,
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.
OPINION & 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.
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
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
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.
THIS CONSITUTES THE OPINION AND ORDER OF THE COURT.