Opinion
03 Civ. 6035 (GWG).
April 8, 2005
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.
I. BACKGROUND
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. 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. 5-7.
"R" refers to the page number of the administrative record.
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.Id.
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. R. 305.
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. His prognosis concluded:
"Edema" is an accumulation of an excessive amount of fluid in cells or intracellular tissues. Lymphatic edema occurs due to stasis in the lymph channels. Pitting edema is edema that retains for a time the indentation produced by pressure. Stedman's Medical Dictionary, 566-67 (27th ed. 2000).
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.
R. 160.
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."Id.
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 disability.
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)).
R. 25-26.
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. § 423(d)(2)(A).
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.
III. DISCUSSION
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 testimony).
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 Kleiman's testimony.
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 work.
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 upheld.
Conclusion
The Commissioner's motion for judgment on the pleadings is granted. The Clerk is requested to enter judgment dismissing the complaint.
SO ORDERED.