United States District Court, S.D. New York
April 8, 2005.
EKATERINI KLEIMAN, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
OPINION AND ORDER
Plaintiff Ekaterini Kleiman brings this action pursuant to
42 U.S.C. § 405(g) to obtain judicial review of the final decision
of the Commissioner of Social Security (the "Commissioner")
denying her claim for disabled widow's insurance benefits. The
Commissioner has moved for judgment on the pleadings pursuant to
Fed.R.Civ.P. 12(c). The parties have consented to
determination of this case by a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the
Commissioner's motion is granted.
A. Kleiman's Claim for Benefits and Procedural History
Kleiman filed for disabled widow's insurance benefits on
February 16, 2000. R. 64-66, 71-80.*fn1 Kleiman claimed that
she had been disabled since January 21, 1999 due to medical
problems arising out of her treatment for recurrent breast
cancer. R. 65, 72. Her application was denied both initially and
on reconsideration. R. 31-34, 37-39. Kleiman appealed the denial
to an administrative law judge ("ALJ") on February 1, 2001, R. 40, and
a hearing was held on February 5, 2002, R. 373-427. Kleiman
appeared at the hearing represented by counsel. R. 375. Dr. Paul
Greenberg testified as a medical expert. Id.; R. 415-22. Due to
a lack of medical evidence at the initial hearing, the ALJ issued
a subpoena in order to obtain additional medical records. R. 190,
422-23. These records were produced and the ALJ held a
supplemental hearing on October 8, 2002 to review the new
evidence. R. 428-42. Kleiman did not attend the supplemental
hearing, but was represented by her attorney. R. 430. Dr.
Greenberg was also present. Id. On November 13, 2002, the ALJ
found that Kleiman was not entitled to disability benefits. R.
16-26. This decision became final when Kleiman's request for
review was denied by the Appeals Council on June 27, 2003. R.
Kleiman filed a timely complaint on August 11, 2003. See
Complaint, filed Aug. 11, 2003 (Docket #1). The Commissioner has
moved for judgment on the pleadings. See Motion for Judgment on
the Pleadings, filed June 16, 2004 (Docket #11); Memorandum of
Law in Support of the Commissioner's Motion for Judgment on the
Pleadings, filed June 16, 2004 (Docket #12) ("Def. Mem.").
Kleiman has cross-moved for judgment on the pleadings. See
Plaintiff's Cross Motion for Judgment on the Pleadings, filed
July 15, 2004 (Docket #15); Memorandum of Law in Opposition to
Defendant's Motion for Judgment on the Pleadings and in Support
of Plaintiff's Motion for Judgment on the Pleadings, filed July
15, 2004 (Docket #16) ("Kleiman Mem."). The Commissioner has
submitted a supplemental memorandum of law. See Memorandum of
Law in Further Support of Defendant's Motion for Judgment on the
Pleadings and in Opposition to Plaintiff's Cross-Motion for
Judgment on the Pleadings, filed July 30, 2004 (Docket #17). B. Evidence Presented at the Hearing Before the ALJ
1. Kleiman's Testimony
Kleiman was born March 11, 1948 in Greece. R. 376. She
graduated from college in Greece and worked as a nurse in a
hospital in Athens beginning in 1974. R. 73, 377-78. Kleiman came
to the United States to earn a master's degree in epidemiology in
1991. R. 377-78. She married Joseph Kleiman on June 28, 1992. R.
68, 378. Mr. Kleiman died in August 1993. R. 378.
Kleiman was first diagnosed with breast cancer in 1994. R. 379.
She underwent a radical mastectomy and was treated with a course
of chemotherapy following surgery. R. 379-80. Kleiman testified
that she did not continue her graduate studies due to her
illness, but she returned to Greece periodically and worked as a
nurse in the Athens hospital where she had worked since 1974. R.
377, 400-03. In 1997, Kleiman was unable to continue nursing and
became a medical secretary, working at the same hospital until
1998. R. 401-04. As a secretary, Kleiman was primarily
responsible for calling parents regarding their children's
medical appointments. R. 404. Kleiman testified that she worked
six hours a day, five days a week in this capacity. Id.
In June 1998, Kleiman was diagnosed with a recurrence of breast
cancer in her left breast. R. 381. After the malignant tumor was
removed, she was treated with a course of radiation and
chemotherapy, which lasted until December 1999. R. 382-83.
Kleiman testified that the chemotherapy and radiation treatments
left her with nausea, vomiting, fatigue, diarrhea, abdominal
pain, fevers, and difficulty sleeping. R. 383-85. Kleiman
reported that she attempted to work in a real estate office in
1999, but quit after a week because she was unable to do the job. R. 405-06. She did not attempt to work after this. R. 405.
At the hearing, Kleiman reported having difficulty using her
left arm and hand, being unable to elevate her right hand, being
unable to type or write, dropping things with her left hand, and
having difficulty going up steps. R. 389-90. She stated that she
was often nauseated, vomited approximately five days a week,
suffered from diarrhea and stomach pain, fatigued easily, and
suffered from insomnia. R. 391-93, 396-97. Kleiman estimated that
she could walk one block before having to sit and rest. R. 392.
Kleiman reported that she lived alone but had a friend who did
her grocery shopping, laundry, and cleaning for her. R. 394.
Kleiman testified that her typical day included reading and
watching television. R. 414.
2. Medical Reports, Progress Notes, and Other Evidence
In 1994, Kleiman was diagnosed with infiltrating ductal
carcinoma of the left breast. R. 106, 194. After a radical
mastectomy to remove the malignant tumor, Kleiman received
chemotherapy. Id. Although radiation therapy was recommended,
Kleiman instead returned to Greece. R. 194. When she came back to
the United States in 1995, she was placed on Tamoxifen. Id.
Kleiman did well on treatment for several years but was
diagnosed with a recurrent breast carcinoma in 1998. R. 195. On
June 10, 1998, the mass was removed and Kleiman began receiving
radiation therapy. R. 108-10, 203-05. Kleiman also began taking
Armidex. R. 133. Two months after ending radiation therapy, Dr.
John Rescigno, a treating radiation oncologist, reported that
Kleiman was "doing well." R. 197-98. Dr. Rescigno reported that,
except for hyperpigmentation at the scar site, Kleiman's physical
examination was normal. Id.
Follow-up visits with oncologist Dr. Amy Tiersten and
gynecologist Dr. Carol Brown revealed no further abnormalities. R. 221, 349. A mammogram on
Kleiman's right breast on June 9, 1999 uncovered no suspicious
findings. R. 345.
When Kleiman saw Dr. Tiersten on September 14, 1999, she
complained of a cough and occasional blood-tinged sputum,
shortness of breath, fever, poor appetite, and fatigue. R. 220.
Although Dr. Tiersten found the new complaints "potentially
worrisome," id., physical examinations and lab tests did not
reveal any abnormalities. R. 333-37, 340-43. On December 16,
1999, Kleiman reported suffering severe abdominal pain the
previous night, but felt less pain by the time of her visit to
the hospital and there were no unusual medical findings. R.
240-41. Subsequent medical visits were essentially unremarkable.
See R. 129, 238, 310-14.
Dr. Tiersten completed a form in support of Kleiman's
application for disability assistance on April 10, 2000,
assessing Kleiman's ability to do work-related physical
activities. R. 132-39. Dr. Tiersten noted that Kleiman was unable
to lift, push, or pull using her left side, and could not stand
or walk more than two hours per day. R. 134-35. She did not note
any other physical restrictions on Kleiman's ability to work.
Kleiman reported various symptoms of minor illnesses during
2000, including occasional fevers, fatigue, back pain, and
shortness of breath, but examinations revealed no abnormalities
and Kleiman's pain and fevers responded to Tylenol. R. 218,
291-302, 310-12. While Kleiman also complained of various
gynecological problems on a visit to Dr. Brown, all test results
were normal. R. 304, 306. Kleiman was referred to a Sexual Health
Clinic and was scheduled to return to the gynecologist in a year.
On November 27, 2000, Kleiman reported headaches, chest pain,
anxiety, depression and insomnia. R. 236. Tests revealed no
significant physical problems and Kleiman declined to pursue counseling for depression. R. 236-37. Kleiman reported
feeling well at a physical examination conducted on May 7, 2001,
and did not report any physical symptoms. R. 278.
On June 4, 2001, Kleiman returned to the hospital with
complaints of fever, nausea, chest pain, headaches, dizziness,
muscle aches, anxiety, and depression. R. 229. Doctors found no
evidence of disease when she returned for a clinical visit on
November 19, 2001. R. 226-28. Kleiman did, however, continue to
report anxiety and depression, R. 227, and she underwent a
psychological consultation on January 21, 2002. R. 224-25. The
psychiatrist concluded that Kleiman's symptoms were "consistent
with a panic disorder without agoraphobia." R. 225.
In 1998, after Kleiman had been diagnosed with cancer for the
second time, Kleiman's treating physician, Dr. Tiersten, wrote
several brief letters stating that Kleiman would be unable to
work for various periods of time due to her illness. R. 145-148,
177-79. Kleiman testified that these letters were written for the
benefit of her employers in Greece to permit her to retain her
pension. R. 406. The first letter was dated February 16, 1999,
and stated that Kleiman would be unable to be at work until May
31, 1999. R. 145. A second letter, dated September 14, 1999,
indicated that Kleiman would be unable to work until December 27,
1999. R. 146. A letter dated December 28, 1999 stated that
Kleiman would be unable to work until April 30, 2000. R. 147.
Another letter dated July 11, 2000 stated that Kleiman would not
return to work until October 31, 2000. R. 148. Additional letters
followed, noting that Kleiman would not be able to work for
periods of several months during 2001 and 2002. R. 177-79.
3. Consultative Examination
Kleiman was examined by Dr. E.B. Balinberg, a consulting
internal medicine physician on October 30, 2000. R. 158-60. While
Kleiman complained of a cough, shortness of breath, poor appetite, and extreme fatigue, Dr. Balinberg found no
physical abnormalities other than "lymphedema in the left upper
extremity" and "Grade I pitting edema of the legs below the
knees." R. 159.*fn2 His prognosis concluded:
Functional capacity to do work related activities:
She has decreased strength in the left grip, a
limited range of motion in the left shoulder and
status post radical mastectomy. There is a
correlation between history, symptoms and physical
findings. Based on abnormal findings mentioned above,
I estimated that she [has] restricted ability to do
heavy physical activities like lifting, carrying,
pushing and pulling heavy loads and to do overhead
activities with the left hand.
C. The ALJ's Decision
On November 13, 2002, the ALJ determined that Kleiman was not
entitled to disabled widow's insurance benefits. R. 16-26. His
decision consists of an extensive analysis of Kleiman's
testimony; the testimony of the medical expert, Dr. Greenberg;
Kleiman's medical records from Memorial Sloan Kettering Hospital
and Columbia Presbyterian; treatment notes from Kleiman's
treating physician; and the medical report written by the state
agency consultative examiner, Dr. Balinberg. R. 20-24.
After analyzing the evidence, the ALJ found Kleiman's testimony
regarding her complaints to be "not entirely credible," noting
that Kleiman's complaints were disproportionate to the medical
evidence. R. 24. He observed that the extensive medical record
showed no evidence that Kleiman's cancer had recurred and that
all physical examinations following removal of the second tumor
were normal. Id. He also noted that the severity of Kleiman's complaints were inconsistent with her reported activities. Id.
He found that Kleiman was able to engage in "a reasonably broad
range of daily activities" and reasoned that her time spent
reading and watching television was evidence of her ability to
concentrate and pay attention. Id. The ALJ also pointed out
that Kleiman traveled to Greece to visit her family on multiple
occasions in spite of complaints about her physical health. Id.
The ALJ concluded: "In light of these factors, the claimant's
assertions concerning her complaints are not entirely credible."
The ALJ also determined that Dr. Tiersten's conclusion that
Kleiman was unable to work at various times was not entitled to
controlling weight. Id. He found that the medical records,
which did not show any evidence of disease, did not support Dr.
Tiersten's conclusion. Id. The ALJ also found that the report
issued by the consultative examiner, Dr. Balinberg, did not
support Dr. Tiersten's conclusion. Id. Furthermore, the ALJ
found that Dr. Tiersten's own assessment of Kleiman's residual
functional capacity in April 2000 was inconsistent with a finding
that Kleiman was unable to work. Id.
The ALJ made the following findings:
1. The claimant meets all of the nondisability
requirements for Disabled Widow's Insurance Benefits
set forth in Section 202(e) of the Social Security
Act (with the exceptions noted in
20 C.F.R. § 404.335(e)). The claimant's prescribed period begins
August 1, 1993 and ends August 1, 2000.
2. The claimant has not engaged in substantial
gainful activity since the alleged onset of
3. The claimant is status post left radical
mastectomy, a severe impairment based upon the
requirements in the Regulations
(20 C.F.R. § 404.1521).
4. This medically determinable impairment does not
meet or medically equal one of the listed impairments
in Appendix 1, Subpart P, Regulation No. 4.
5. The undersigned finds the claimant's allegations
regarding limitations are not totally credible for
the reasons set forth in the body of the decision. 6. The undersigned has carefully considered all of
the medical opinions in the record regarding the
severity of the claimant's impairment
(20 C.F.R. § 404.1527).
7. The claimant has the following residual functional
capacity: the full range of sedentary work.
8. The claimant's past relevant work as secretary did
not require the performance of work-related
activities precluded by her residual functional
capacity (20 C.F.R. § 404.1565).
9. The claimant's medically determinable status post
left radical mastectomy does not prevent the claimant
from performing her past relevant work.
10. The claimant was not under a "disability" as
defined in the Social Security Act, at any time
through the date of the decision
(20 C.F.R. § 404.1520(e)).
II. LAW GOVERNING ACTIONS BROUGHT PURSUANT TO
42 U.S.C. § 405(g)
A. Scope of Judicial Review
A court reviewing a final decision by the Commissioner must
determine whether the decision was supported by substantial
evidence. 42 U.S.C. § 405(g) ("The findings of the Commissioner . . .
as to any fact, if supported by substantial evidence, shall
be conclusive. . . ."); Shaw v. Chater, 221 F.3d 126, 131 (2d
Cir. 2000) ("A district court may set aside the Commissioner's
determination that a claimant is not disabled only if the factual
findings are not supported by `substantial evidence' or if the
decision is based on legal error.") (citations omitted).
"Substantial evidence" is "`more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'" Richardson v. Perales,
402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).
To determine whether the Commissioner's findings are supported
by substantial evidence, the reviewing court is required to
"examine the entire record, including contradictory evidence." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (per
curiam) (citation omitted). If the reviewing court finds
substantial evidence to support the Commissioner's final
decision, that decision must be upheld, even where substantial
evidence supporting the claimant's position also exists. See
Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); Schauer
v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982). The role of the
reviewing court, therefore, is "quite limited and substantial
deference is to be afforded the Commissioner's decision." Burris
v. Chater, 1996 WL 148345, at *3 (S.D.N.Y. Apr. 2, 1996). If the
Commissioner failed to apply the correct legal standard in making
a determination, however, the reviewing court must not defer to
the Commissioner's decision. Tejada v. Apfel, 167 F.3d 770, 773
(2d Cir. 1999).
B. Standard for Evaluating Disability Claims
The Social Security Act defines the term "disability" as the
"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 will be
held to be disabled only if it is determined that his
"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." Id. §
To evaluate a Social Security claim, the Commissioner is
required to examine: "(1) the objective medical facts; (2)
diagnoses or medical opinions based on such facts; (3) subjective
evidence of pain or disability testified to by the claimant or
others; and (4) the claimant's educational background, age, and
work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam) (citations omitted).
Regulations issued pursuant to the Social Security Act set
forth a five-step process that the Commissioner must use in
evaluating a disability claim. See 20 C.F.R. § 404.1520; see
also Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000)
(describing the five-step evaluation process). In evaluating the
claim, the Commissioner must first determine whether the claimant
is currently engaged in any "substantial gainful activity."
20 C.F.R. § 404.1520(a)(4)(i). If the claimant is not engaged in
substantial gainful activity, the Commissioner must decide if the
claimant has a "severe impairment," id. § 404.1520(a)(4)(ii),
which is an impairment or combination of impairments that
"significantly limits [the claimant's] physical or mental ability
to do basic work activities," id. § 416.920(c). If the
claimant's impairment is severe and is listed in 20 C.F.R. Part
404, Subpt. P, App. 1, or is equivalent to one of the listed
impairments, a claimant must be found disabled. Id. §
404.1520(a)(4)(iii). If the claimant's impairment is not listed
or is not equal to one of the listed impairments, the
Commissioner must review the claimant's residual functional
ability to determine if the claimant is able to do work he or she
has done in the past. Id. § 404.1520(a)(4)(iv). If the claimant
is able to do such work, he or she is not disabled. Id.
Finally, if the claimant is unable to perform past work, the
Commissioner must decide if the claimant's residual functional
capacity permits the claimant to do other work. Id. If the
claimant cannot perform other work, the claimant will be deemed
disabled. Id. § 404.120(a)(4)(v). The claimant bears the burden
of proof on all steps except the final one (that is, proving that
there is other work the claimant can perform). Curry,
209 F.3d at 122.
Kleiman makes a number of arguments in challenging the ALJ's
adverse disability determination. She argues that the ALJ: (1) failed to develop the
medical record as required by law, see Kleiman Mem. at 5-8; (2)
did not properly assess her subjective symptoms or provide an
adequate rationale for his conclusion that she was not credible,
id. at 11-13; and (3) improperly determined that Kleiman had
the residual functional capacity to do past relevant work as a
secretary, id. at 8-10.
A. Failure to Develop the Administrative Record
Kleiman argues that the ALJ failed to develop and evaluate the
medical evidence as required by law. Id. at 5-8. Specifically,
she alleges that the ALJ failed to get necessary medical records
from Dr. Tiersten and did not subpoena her to testify as a
witness, and thus critical information about her disability was
never received. Id. at 7, 13. Kleiman also argues that the ALJ
failed to develop the medical record with respect to Kleiman's
mental health. Id. at 8. Each argument is discussed in turn.
1. Information from Dr. Tiersten
It is well-established that an administrative law judge bears
an affirmative duty to develop the administrative record. See,
e.g., Tejada, 167 F.3d at 774. The non-adversarial nature of
Social Security proceedings require the ALJ "to investigate the
facts and develop the arguments both for and against granting
benefits." Sims v. Apfel, 530 U.S. 103, 111 (2000). This duty
exists even where, as here, the claimant is represented by
counsel. Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996).
The duty to develop the record obligates ALJs to make "every
reasonable effort to help [a claimant] get medical reports from
[his or her] own medical sources." Id. (citing
42 U.S.C. § 405(d)). This duty is particularly important with regard to
obtaining information from the claimant's treating physician because of the treating physician
regulations set out in 20 C.F.R. § 404.1527(d)(2). These
regulations direct ALJs to give a treating physician's opinion
controlling weight where that opinion is "well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and not inconsistent with the other substantial
evidence" in the record. 20 C.F.R. § 404.1527(d)(2). The
regulations also state that if the treating physician does not
provide adequate information upon which to make a disability
determination, the information is ambiguous, or does not appear
to be based on acceptable medical techniques, the ALJ may
"request? copies of [the] medical source's records, a new
report, or a more detailed report from [the] medical source."
Id. § 404.1512(e). An ALJ has the authority to issue subpoenas
to ensure the production of a claimant's medical records and
obtain the testimony of necessary witnesses. 42 U.S.C. § 405(d).
If an ALJ fails to assist a litigant in developing the record,
remand for a new hearing is appropriate. See Rosa v.
Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999).
During the initial disability hearing on February 2, 2002, the
medical expert, Dr. Greenberg, testified that he did not "have a
good feel for exactly what [was] happening" because the medical
evidence was inadequate. R. 422. The ALJ agreed. He declared that
he was "totally unsatisfied" with the medical record and that
there was a "paucity of medical records which to a degree inhibit
[the medical expert] from having an accurate assessment of
[Kleiman's] overall medical condition." R. 423. Of the categories
of missing information, Dr. Greenberg suggested that Dr.
Tiersten's progress notes might be the most helpful. R. 422.
Consequently, the ALJ stated he would subpoena Dr. Tiersten's
"progress notes, medical notes, progress reports, and any other
documentation? . . . in her office." R. 423. After issuing a subpoena, the ALJ received a flood of new
materials from Columbia Presbyterian Hospital, including results
of clinical and diagnostic tests, notes from doctors and nurses,
and other medical documents. R. 193-372. A supplemental hearing
was held on October 8, 2002 to review the medical evidence and
obtain further testimony from Dr. Greenberg based on the
additional information supplied by the hospital. R. 430-42.
As noted, Kleiman argues that the receipt of documentary
evidence was not sufficient and suggests that the ALJ should have
issued a subpoena for Dr. Tiersten's testimony under
20 C.F.R. § 404.950(d). Kleiman Mem. at 7, 13. However, the plain language of
this regulation is permissive, not mandatory, and merely permits
an ALJ to exercise discretion with regard to issuing subpoenas.
See, e.g., Yancey v. Apfel, 145 F.3d 106, 113-14 (2d Cir.
1998) (no abuse of discretion in ALJ's refusal to subpoena
treating physician where claimant had an adequate opportunity to
present her case, there was no evidence that the treating
physician's reports were inaccurate or biased, and there was no
indication that the testimony would be helpful).
Here, the ALJ did not abuse his discretion by choosing to rely
solely on the documentation received from Dr. Tiersten. These
records included Dr. Tiersten's notes from follow-up visits with
Kleiman and a functional assessment that Dr. Tiersten prepared
for the Office of Temporary and Disability Assistance. R. 132-35,
219-21. Because Kleiman had a full and fair opportunity to
develop the record, all of Dr. Tiersten's notes were in the
medical record, and there was no indication that Dr. Tiersten's
treatment notes were inaccurate or biased, the ALJ acted within
the scope of his discretion when he did not subpoena Dr.
Tiersten. See generally Yancey, 145 F.3d at 113-14. Kleiman also argues that the ALJ did not adequately explain the
weight he accorded to Dr. Tiersten's opinion reflected in the
various letters she wrote on Kleiman's behalf that Kleiman was
unable to work, and instead based his opinion on the testimony of
a medical expert who stated that he did not have a clear
understanding of Kleiman's case. Kleiman Mem. at 13-14. This
argument is not supported by the record. Once Dr. Tiersten's
treating notes were received, Dr. Greenberg was able to provide
the ALJ with an informed opinion regarding Kleiman's condition.
See generally R. 433-41 (transcript of Dr. Greenberg's
To the extent that Kleiman argues that Dr. Tiersten's opinions
were entitled to controlling weight, that argument too must be
rejected. As noted, a treating physician's opinion is entitled to
controlling weight in cases where that opinion is "well-supported
by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence." 20 C.F.R. § 404.1527(d). The reasons for denying a
physician's opinion controlling weight must be set forth in the
ALJ's opinion. Id. § 416.927(d)(2); Shaw, 221 F.3d at 134. In
addition, where a treating physician's opinion cannot be given
controlling weight, the ALJ must consider: "(i) the frequency of
examination and the length, nature, and extent of the treatment
relationship; (ii) the evidence in support of the opinion; (iii)
the opinion's consistency with the record as a whole; and (iv)
whether the opinion is from a specialist." Shaw,
221 F.3d at 134 (quoting Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118
(2d Cir. 1998)); accord Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004) (per curiam).
Here, the ALJ explicitly stated that "the medical record does
not support Dr. Tiersten's opinion." R. 24. He notes that the
medical records show that there was "no evidence of disease,
while physical examination and diagnostic test results were
normal." Id. Indeed, Kleiman's treatment record, including physical exams and other diagnostic
tests, revealed no evidence of disease after 1998. R. 219-221,
238, 240-41, 342, 349.
The ALJ further observed that Kleiman's treatment with Dr.
Tiersten was on a follow-up basis only, that there were long
intervals between visits, and that Dr. Tiersten's opinion was
also contradicted by an examining physician, Dr. Balinberg, who
found that Kleiman had the functional capacity to do work with
some limitations. R. 24; see R. 159-60. The ALJ noted that Dr.
Tiersten's own assessment of Kleiman's residual functional
capacity suggested that she was "capable of sitting without
limit." R. 24; see R. 135. The ALJ observed further that a
finding of incapacity was inconsistent with Kleiman's own
conduct, which included foreign travel. Id.
In sum, because the ALJ found substantial evidence in the
record that was inconsistent with Dr. Tiersten's opinion, the ALJ
did not err in concluding that "Dr. Tiersten's opinion [was] not
entitled to great or controlling weight." R. 24.
2. Information Regarding Kleiman's Mental Health
Kleiman also claims that she had "documented psychiatric
impairments" and that, given her history of recurrent breast
cancer and "noxious and debilitating treatment including potent
medication with important side effects," the ALJ should have
ordered psychological testing and employed an expert in
psychiatric medicine. Kleiman Mem. at 8.
An ALJ may only consider the impairments that a claimant
presents before him or "about which [the ALJ has] evidence."
20 C.F.R. § 404.1512(a). Thus, while an ALJ is obligated to
investigate the effects of a possibly disabling impairment, this
duty only arises if the record indicates that such an impairment
"might exist." Prentice v. Apfel, 11 F. Supp. 2d 420, 426
(S.D.N.Y. 1998). The record presents only the barest suggestion that Kleiman has
any disabling psychiatric impairments. Kleiman first reported
being depressed and anxious in November 27, 2000, and she
declined treatment when it was offered to her. R. 237. In fact,
Kleiman did not agree to be referred to a psychologist until June
4, 2001. R. 228. On January 21, 2002, she underwent a psychiatric
interview with Dr. David Payne. R. 224-25. Dr. Payne noted that
Kleiman had logical and linear thought processes. R. 225.
Although she appeared anxious, he found no evidence of suicidal
or homicidal ideation, and found that her memory, concentration,
insight, and judgment were within normal limits. Id. Dr. Payne
determined that Kleiman's symptoms were consistent with a panic
disorder without agoraphobia, but drew no conclusions with
respect to her ability to work. Id. Furthermore, while Kleiman
reported taking Ativan (Lorazepam) for depression on her social
security application, R. 77, Kleiman's testimony did not suggest
that she had problems with depression or anxiety. Rather, her
testimony and Dr. Payne's report suggest that Kleiman attributed
her inability to work to physical complaints such as fatigue and
nausea. R. 224, 284-97. Such evidence is not sufficient to
trigger a duty on the part of the ALJ to develop the record
further on this point because nothing suggested that Kleiman
suffered from any disabling psychiatric condition. See
Yancey, 145 F.3d at 114 (where evidence in record did not
suggest a mental impairment, ALJ had no duty to recommend that
claimant undergo psychiatric evaluation); cf. Prentice,
11 F. Supp. 2d at 426-27 (claimant's statements of suicidal ideation
and depression and two clinical diagnoses of depression and
recommendation of antidepressants triggered duty to investigate).
Even if the evidence was sufficient to trigger a duty to
investigate, Kleiman may only claim benefits for a disability
that manifested itself within seven years of her husband's death. See 42 U.S.C. § 402(e)(4). The lack of evidence that Kleiman
experienced disabling psychiatric symptoms prior to August 2000
further justifies the ALJ's decision not to develop the record on
the issue of Kleiman's mental health.
B. Subjective Complaints and Claimant Credibility
Kleiman alleges that the ALJ did not accord her subjective
complaints sufficient weight or provide an adequate rationale for
his determination that her complaints were not credible. Kleiman
Mem. at 10-11. She asserts that she "consistently" complained of
severe pain and fatigue, suffered functional impairments, and
maintains that her symptoms are consistent with her proven
medical problems. Id. at 10.
In determining whether a claimant is disabled, Social Security
regulations require ALJs to "consider all [a claimant's]
symptoms, including pain, and the extent to which [the] symptoms
can reasonably be accepted as consistent with the objective
medical evidence and other evidence." 20 C.F.R. § 404.1529(a).
The claimant's reported symptoms are not to be accepted as
conclusive of the existence of a disability, however, but rather
must be analyzed in the context of all the relevant evidence.
Id. As the regulations state:
Because symptoms, such as pain, are subjective and
difficult to quantify, any symptom-related functional
limitations and restrictions which you, your treating
or examining physician or psychologist, or other
persons report, which can reasonably be accepted as
consistent with the objective medical evidence and
other evidence, will be taken into account . . . in
reaching a conclusion as to whether you are disabled.
We will consider all of the evidence presented,
including information about your prior work record,
your statements about your symptoms, evidence
submitted by your treating, examining or consulting
physician or psychologist, and observations by our
employees and other persons. . . . We will consider
whether there are any inconsistencies in the evidence
and the extent to which there are any conflicts
between your statements and the rest of the evidence,
including your medical history, the medical signs and laboratory findings, and statements by your treating
or examining physician or psychologist or other
persons about how your symptoms affect you.
Id. § 404.1529(c)(3) & (c)(4).
The ALJ's findings that Kleiman's subjective complaints were
"disproportionate to the evidence" were explicitly based on
Kleiman's medical records and Kleiman's own report of her daily
activities. R. 24. The ALJ noted Kleiman's complaints of fatigue,
nausea, vomiting, diarrhea, gastrointestinal pain, fainting
spells, and the limited use of her left arm. R. 22. However, the
medical records contained no evidence of a recurrence of breast
cancer or other significant disease. R. 22-23. Kleiman's
treatment notes from Memorial Sloan Kettering Hospital
"repeatedly note that the claimant is without evidence of
disease." R. 22. Dr. Greenberg testified that the claimant "had
occasional complaints of unknown causes" but concurred that all
physical examinations were normal and that there was no evidence
of disease. R. 23. Dr. Greenberg noted that Kleiman had been
receiving only "conservative" treatment and that her medical care
following the completion of her radiotherapy treatment had only
been for follow-up visits with her physicians. R. 24. As the
regulations state, "symptoms, such as pain, fatigue, shortness of
breath, weakness, or nervousness, will not be found to affect [a
claimant's] ability to do basic work activities unless medical
signs or laboratory findings show that a medically determinable
impairment(s) is present." 20 C.F.R. § 404.1529(a).
The ALJ also took note of Dr. Balinberg's report following a
physical examination of Kleiman. R. 22. The report concluded that
she had "limited ability for heavy physical activities such as
lifting, carrying, pushing and pulling heavy loads, and [for]
overhead activities" based on Kleiman's "limited lift arm motion
and strength." Id. Significantly, however, Dr. Balinberg reported no other limitations. Id. This finding is also
inconsistent with Kleiman's subjective complaints.
Kleiman is correct in arguing that, where a claimant's
subjective testimony is rejected, the ALJ must do so explicitly
and specifically. Williams v. Bowen, 859 F.2d 255, 260-61 (2d
Cir. 1988) (where an ALJ rejects witness testimony as not
credible, it must set forth the basis for this finding "with
sufficient specificity to permit intelligible plenary review of
the record") (citing Carroll v. Sec'y of Health and Human
Servs., 705 F.2d 638, 643 (2d Cir. 1983)). But that is exactly
what occurred here. The ALJ discussed Kleiman's complaints in the
context of the complete medical record and her own testimony
regarding her daily activities. See R. 24. He then stated that
"[i]n light of these factors, the claimant's assertions
concerning her complaints are not entirely credible." R. 24.
In support of her argument regarding the ALJ's credibility
determination, Kleiman argues that her statements with regard to
her symptoms were corroborated by Dr. Tiersten's "findings and
opinions" apparently referring to the series of letters in
which Dr. Tiersten stated, without explanation, that Kleiman
would be unable to work for various periods between 1999 and
2002. Kleiman Mem. at 13. The ALJ, however, could properly decide
not to give weight to Dr. Tiersten's letters. The ALJ observed
that the letters Dr. Tiersten wrote on Kleiman's behalf
conflicted with the evidence and diagnostic evaluations in the
record, which showed no evidence of disease. R. 24. He also found
that Kleiman was receiving medical treatment on a "follow up
basis only." Id. Finally, neither Dr. Balinberg nor Dr.
Tiersten's assessments of residual functional capacity reflected
a finding that Kleiman would be unable to work. Id. Given the
inconsistencies between Dr. Tiersten's letters and the objective
medical evidence, the ALJ did not err in making adverse credibility findings with respect to
C. Determination of Kleiman's Ability to do Past Work
The fourth step in a disability determination requires the ALJ
to review the claimant's residual functional ability to determine
if the claimant is able to do the work he or she has done in the
past. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is able to
do such work, he or she is not considered to be disabled. Id.
This step entails two separate inquiries. First, the ALJ must
ascertain the claimant's residual functional capacity. See
Butts v. Barnhart, 388 F.3d 377, 380-81 (2d Cir. 2004). Next,
the ALJ must determine whether the claimant would be able to do
past relevant work given her residual functional capacity. Id.
Kleiman asserts that the ALJ failed to conduct either inquiry
properly. She first alleges that the ALJ found that she had the
capacity to perform the full range of sedentary work "without
adequate development, and upon insubstantial grounds." Kleiman
Mem. at 8. Kleiman also argues that the ALJ failed to inquire
into "the physical, mental and emotional requirements" of her
past relevant secretarial work in Greece, including the amount of
walking, standing, sitting, lifting, and carrying that the
secretarial work she performed actually entailed, id. at 9, and
that the ALJ did not adequately inquire into whether she could do
such a job in light of her functional limitations. Id. at 9-10.
1. Residual Functional Capacity
In determining Kleiman's residual functional capacity, the ALJ
considered Kleiman's subjective complaints, the medical opinions
of Dr. Tiersten, Kleiman's own characterization of her daily
activities, and the other available medical evidence. R. 23-24.
As discussed above, the ALJ found that Kleiman's complaints and Dr. Tiersten's opinions
regarding her inability to work could not be accepted in light of
the medical evidence that showed no evidence of disease. R. 24.
Assessments by Dr. Tiersten and consultative examiner, Dr.
Balinberg, supported the finding that Kleiman had the functional
capacity to do the full range of sedentary work. Dr. Balinberg
concluded that Kleiman had restricted ability to do heavy
physical activities or "overhead activities with the left hand,"
but noted no other restrictions. R. 160. Similarly, Dr. Tiersten
reported only that Kleiman was unable to lift, push, or pull
objects with her left side, and had the ability to stand or walk
only up to two hours per day; but she did not find any other
postural, manipulative, visual, communicative, or environmental
limitations. R. 134-35. These medical evaluations of functional
capacity are sufficient to support the ALJ's conclusion that
Kleiman had residual functional capacity to perform sedentary
2. Ability to Perform Past Relevant Work
Once the claimant's residual functional capacity is
established, an ALJ must determine whether the claimant can
perform her past relevant work. 20 C.F.R. § 416.920(e). To
qualify as past relevant work, the work must have been performed
in the last 15 years, have been performed long enough for the
claimant to have learned to do it, and qualify as substantial
gainful activity. Id. § 404.1560(b). To get relevant vocational
information, ALJs may inquire into duties performed, equipment or
tools used, the amount of walking, standing, sitting, lifting and
carrying the claimant did during the day, and any other relevant
information. Id. Kleiman concurs that her secretarial work
constituted past relevant work, see Kleiman. Mem. at 8-9, but
argues that the ALJ did not sufficiently establish what that work
required. Id. at 9-10. The ALJ asked about Kleiman's secretarial work during the first
hearing. R. 404. In response to the ALJ's questions regarding her
job as a secretary in the Athens hospital, Kleiman testified that
she called people regarding their children's appointments. Id.
The ALJ did not further inquire into the amount of standing,
walking, carrying, lifting, or sitting that was required by the
job. However, he did inquire into the secretarial work Kleiman
did briefly in a real estate office in Queens. R. 380-81. Kleiman
testified that as a secretary, her tasks included filing, writing
letters to tenants, and taking checks to the bank. R. 381.
The Social Security Act places the burden on each claimant to
show that his "physical or mental impairment or impairments are
of such severity that he is . . . unable to do his previous
work." 42 U.S.C. § 423(d)(2)(A); accord Berry v. Schweiker,
675 F.2d 464, 467 (2d Cir. 1982). The courts have interpreted
"previous work" not to apply narrowly to the specific job a
claimant held previously but rather to the general line of work
in which the claimant was engaged. See, e.g., Jock v.
Harris, 651 F.2d 133, 135 (2d Cir. 1981) (appellant had burden
to show she could not work as a cashier, not that she could not
return to her previous position as a cashier in a supermarket);
accord Halloran, 362 F.3d at 33. "Congress has thus given the
claimant a very heavy burden of showing that he is unable to
engage in any activity in the same line of work that he was in
before, and not just his specific former job." Lawler v.
Sullivan, 1989 WL 117694, at *5 (S.D.N.Y. Sept. 29, 1989).
The ALJ's failure to inquire specifically into the amount of
standing, carrying, lifting, etc. in Kleiman's past secretarial
jobs does not constitute sufficient grounds to find that he
improperly determined that Kleiman could do past relevant work.
Kleiman did not testify that any of the duties she had as a
secretary whether in the United States or Greece required pushing, pulling, walking, or any other physical activity that
she would be physically incapable of performing. Furthermore,
secretarial work is defined as sedentary in the Dictionary of
Occupational Titles § 201.362-030 (4th ed. 1991). In Jock, the
Second Circuit approved the ALJ's taking notice that some cashier
positions are wholly sedentary because it was "so plainly within
the common knowledge and experience of ordinary men."
651 F.2d at 135 (internal citation and quotation omitted).
Given Kleiman's residual functional capacity to do the full
range of sedentary work, the ALJ could properly find that Kleiman
would be able to return to secretarial work on the basis that
such work was primarily sedentary. R. 25.
D. Substantial Evidence Supported the Decision of the ALJ
In sum, there was substantial evidence supporting the ALJ's
determination that Kleiman is not disabled within the meaning of
the Social Security Act. Medical evidence in the record did not
indicate any evidence of disease. See generally R. 194-372.
An examining physician testified that Kleiman had only limited
functional impairments. R. 160. The expert medical witness also
found no evidence of disease or disability. R. 433-41.
The contrary evidence consisting mainly of Kleiman's
complaints and the letters by Dr. Tiersten is not sufficient to
disturb this conclusion. As discussed above in section III.A.1,
Dr. Tiersten's opinion was not entitled to controlling weight.
Kleiman's subjective complaints could also properly be rejected
in light of conflicting evidence. See section III.B above.
Here, the ALJ was within his discretion not to give controlling
weight to Kleiman's testimony or Dr. Tiersten's letters because
substantial evidence, including medical records and expert
testimony, weighed against a finding of disability. The ALJ's determination that Kleiman would be able to return to
work was supported by the analyses of her functional residual
capacity provided by Dr. Balinberg and Dr. Tiersten and not
inconsistent with the medical record. Finally, his conclusion
that she would be able to perform past relevant work as a
secretary was supported by testimony that her experience as a
secretary involved primarily sedentary work.
Taken as a whole, the evidence is such that "a reasonable mind
might accept [it] as adequate to support" the conclusion that
Kleiman was not disabled. Richardson, 402 U.S. at 401.
Notwithstanding Kleiman's submission of some evidence to the
contrary, there also existed substantial evidence to support the
ALJ's final decision. Consequently, the ALJ's decision must be
The Commissioner's motion for judgment on the pleadings is
granted. The Clerk is requested to enter judgment dismissing the