30 Soc - Sec.rep - Ser. 34, Unempl - Ins.rep. CCH 15503a Doris Alston v. Louis W. Sullivan, M.D., Secretary of Health and Human Services, 904 F.2d 122, 2d Cir. (1990)

904 F.
2d 122
30 Soc.Sec.Rep.Ser. 34, Unempl.Ins.Rep. CCH 15503A

Doris ALSTON, Plaintiff-Appellee,
v.
Louis W. SULLIVAN, M.D., Secretary of Health and Human
Services, Defendant-Appellant.
No. 856, Docket 89-6196.
United States Court of Appeals,

Second Circuit.
Argued: March 2, 1990.
Decided: May 25, 1990.
Christopher G. Lehmann, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J.

Maloney, U.S. Atty. for E.D.N.Y., Robert L. Begleiter, Asst. U.S. Atty.,
Brooklyn, N.Y., on the brief), for defendant-appellant.
John M. Bigler, Rockville Center, N.Y. (Robert, Huber, Lerner & Bigler,
Rockville Center, N.Y., on the brief), for plaintiff-appellee.
Before OAKES, Chief Judge, and KEARSE and WALKER, Circuit
Judges.
KEARSE, Circuit Judge:
Defendant Secretary of Health and Human Services (the "Secretary") appeals

from a final judgment of the United States District Court for the Eastern
District of New York, Leonard D. Wexler, Judge, reversing the Secretary's
finding that plaintiff Doris Alston was not entitled to disability benefits under
Title II of the Social Security Act, 42 U.S.C.A. Sec. 401 et seq. (West 1983 &
Supp.1990) (the "Act"). The district court held that although the Secretary's
finding that Alston could perform "sedentary" work was supported by
substantial evidence, it should be set aside on the ground that such a finding
was precluded by the Secretary's finding that Alston could not perform her
prior job. On appeal, the Secretary contends (1) that upon determining that the
finding that Alston was able to perform sedentary work was supported by
substantial evidence, the court should have upheld that finding, and (2) that
there was no inconsistency in the Secretary's decision. We agree with both

contentions, and we therefore reverse the decision of the district court.
I. BACKGROUND
2
The facts with respect to Alston's claim of disability were developed in two
administrative hearings. Each hearing resulted in a denial of benefits; each
denial was vacated by the district court. The record reveals the following.
A. The First Administrative Decision

3
From 1976 until early 1981, Alston worked as a balancing clerk for Merrill
Lynch Relocation Management ("Merrill"). In December 1980, she began to
experience a severe cough and shortness of breath. She sought treatment at the
emergency room of Franklin General Hospital in January 1981 and was
hospitalized there for two weeks. When she was discharged, she was told she
could return to work.
In February 1981, she consulted Dr. Howard S. Friedman, Chief of Cardiology

at The Brooklyn Hospital, who hospitalized her again and made a diagnosis of
high blood pressure, pulmonary edema, and mitral regurgitation. Alston
remained at Brooklyn Hospital for approximately two weeks. After being
released, she began seeing Dr. Friedman on a regular basis, approximately
every two to three months. His continuing diagnosis was hypertension and
congestive cardiomyopathy, for which he prescribed various medications.
Alston did not return to work.
In March 1983, Alston filed an application for disability benefits under 42

U.S.C.A. Sec. 423. In the Vocational Report filed as part of her application,
Alston stated that her work at Merrill included "carring [sic ] and lifting books
10-15 lbs for 40-65 ft. sometime [sic ] all day or 3 to 4 day [sic ]...." She stated
that prior to working at Merrill she had worked as a coding clerk at Longines
Wittnauer ("Longines"), where her responsibilities included "[c]arring [sic ] and
lifting books 10-15 lbs. 3-4 ft." Her application was denied initially and upon
reconsideration. The denial after reconsideration concluded that, though Alston
could not perform certain kinds of work,
6 are able to perform light work (for example, you could lift a maximum of 20
you
lbs., with frequent lifting or carrying of objects weighing up to 10 lbs., or walk or
stand for much of the working day).
7Based on your description of your usual job as a balancing clerk, your condition does
not prevent you from returning to this work.

8
Alston sought review of this ruling by an administrative law judge ("ALJ").
At a hearing before ALJ Lester Rosen, Alston testified with respect to, inter
alia, the physical demands of her jobs at Merrill and Longines. She testified that
at Longines her job responsibilities included "lifting file boxes" weighing "
[a]bout twenty-five to thirty pounds." She testified that at Merrill, she had to lift
and carry "[f]ile boxes, sometime [sic ] ... the bounders [sic ] for the computer
printouts," which she estimated weighed "the same."
10
ALJ Rosen also heard testimony from Dr. John L.S. Holloman, Jr., a medical
advisor for the Social Security Administration (the "Administration"), who had
reviewed Alston's medical records. Dr. Holloman confirmed that the records
documented Alston's heart problems and hypertension. He further testified that
as far as he could determine, the hypertension was not controlled. In response
to questions about Alston's ability to return to work, he stated that he thought
she remained able to sit, but that her lifting should be limited to "something less
than 5 pounds."
11
Dr. Friedman had submitted his written reports on Alston's condition, answered
questions orally by telephone, and provided electrocardiogram printouts. At the
close of the hearing, ALJ Rosen asked Alston's attorney to obtain a "residual
functional capacity report" from Dr. Friedman, evaluating her ability to work,
including her ability to lift, carry, walk, and stand. When ALJ Rosen did not
receive the report, he renewed his request. No such report was forthcoming.
12
In a decision dated September 13, 1984, ALJ Rosen denied Alston's claim for
disability benefits. Citing this Court's decision in Eiden v. Secretary of Health,
Education & Welfare, 616 F.2d 63 (2d Cir.1980), he discounted Dr. Holloman's
testimony and treated as binding the records and opinions of Dr. Friedman,
Alston's treating physician. He found that
13 of February 10, 1983, claimant's conditions were well controlled with medication
as
and that while unable to perform her past relevant work due to its lifting
requirements, she at all times thereafter retained the capacity for the full range of
sedentary work....
14
Id. at 5. As a result, the ALJ concluded that "[t]he claimant was not under a
'disability,' as defined in the Social Security Act, at any time through the date of
this decision...." Id. at 6.
15
After exhausting her administrative remedies, Alston commenced an action in

the district court for review of the denial of benefits. The district court, in a
Memorandum and Order dated January 24, 1986 ("1986 Order"), found the
Secretary's decision flawed in several respects. The court found that ALJ Rosen
had erred in ignoring Dr. Holloman's testimony and in relying solely on Dr.
Friedman's records, rather than soliciting a residual functional capacity report.
Thus the court concluded that the Secretary's decision was based on an
incomplete record. Further, in light of the ALJ's finding that Alston was unable
to perform her previous job, the court expressed skepticism at the finding that
she remained able to perform "sedentary" work, stating that "[i]n this Court's
opinion, plaintiff's former job virtually defines sedentary work." Id. at 7. The
court concluded that the Secretary's decision was not supported by substantial
evidence, and it remanded to the Secretary "with directions to determine
whether plaintiff's illness has so limited her functional capacity as to make it
impossible for her to perform sedentary work." Id.
B. The Second Administrative Decision

16
On remand, the Secretary ordered a cardiovascular consultative examination

and report, and sought a residual functional capacity report from Dr. Friedman.
A new hearing was held in September 1986 before ALJ Milton Pravitz. Alston
testified as to the history and continued existence of her medical problems,
including periodic episodes of chest and arm pain, severe coughing, and
fatigue. She stated that she would "get out of breath" when carrying two grocery
bags each weighing five to six pounds. At this hearing, she testified that her job
at Merrill had required her to lift and carry computer printouts weighing "about
five pounds, or three or four" and to lift or carry file boxes "[a]bout once a
year...."
17
The ALJ also heard testimony from Dr. Joseph F. Chiaramonte, a medical
advisor to the Administration, who had reviewed Alston's medical history. He
testified, based on his review of that history that Alston had congestive
cardiomyopathy and hypertension, both of which were controlled by
medication. Relying on her testimony at the hearing as to "her ability to carry
packages of 12 pounds, [and] her fulltime [sic ] employment, not necessitating
carrying anymore [sic ] than four pounds, being primarily sedentary
employment," he opined that Alston "should go back to work."
18
Other evidence presented to the ALJ included the report of Dr. Jack Budow,
who had conducted the ordered cardiovascular examination of Alston. Dr.
Budow's report concluded that Alston had hypertensive heart disease that was
controlled with medication, that she had had an episode of severe heart failure
with pulmonary edema in 1981 but that condition too was controlled with
medication, and that she might have had a myocardial infarction at some time in
the past.
19
Despite repeated requests from ALJ Pravitz and Alston's attorney, Dr. Friedman
still did not submit a residual functional capacity report. Dr. Budow, however,
submitted such a report in which he concluded, inter alia, that Alston could lift
up to 10 pounds, but could do so only occasionally (which the report defined as
up to one-third of an eight hour day).
20
In a recommended decision dated January 30, 1987 ("Second ALJ Decision"),

ALJ Pravitz concluded that Alston was not entitled to benefits. The ALJ
classified Alston's former work as "light" according to the job classification
scheme set forth in the Secretary's regulations, 20 C.F.R. Sec. 404.1567 (1989),
meaning that it required lifting up to 20 pounds at a time. Though finding that
Alston could not perform her prior work, he found that Alston remained able to
do "sedentary" work, a less strenuous category of work defined by those
regulations. Accordingly, he found that Alston was not disabled within the
meaning of the Act.
C. The District Court's 1989 Decision

21
After an unsuccessful administrative appeal, Alston commenced the present

action in the district court for review of the denial of benefits. Both sides
moved for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c).
22
In a Memorandum and Order dated June 13, 1989 ("1989 Order"), the district
court found that at the second administrative hearing, unlike the first, the ALJ
had been presented with "medical testimony indicating that plaintiff could
perform sedentary work. In a purely technical sense, substantial evidence
supports the Secretary's determination that plaintiff can perform sedentary
work." Id. at 9 (emphasis in original). However, reiterating its earlier view that
Alston's prior job " 'virtually defines sedentary work,' " id. (quoting 1986 Order
at 7), the court held that "the ALJ's conclusions in both hearings that plaintiff's
impairment prevents her from performing her previous job but that she can
perform sedentary work is [sic ] self-contradictory." Id. at 9-10 (emphasis in
original). The court therefore reversed the Secretary's decision and entered
judgment awarding benefits to Alston. This appeal followed.
II. DISCUSSION
23
On this appeal, the Secretary contends that the district court erred (a) in ruling
that the Secretary's finding that Alston was capable of performing sedentary
work was impermissibly inconsistent with his finding that Alston could not
return to her prior type of work, and (b) in refusing to uphold the Secretary's
ruling once the court conceded that it was supported by substantial evidence.
Alston opposes these contentions and argues in addition that we should uphold
the judgment in her favor on the basis that the Secretary's sedentary-work
finding was not supported by substantial evidence. We reject Alston's
contentions and find merit in those of the Secretary.
A. Alston's Ability to Perform "Sedentary" Work
24
25
As a general matter, when we review a decision denying benefits under the

Act, we must regard the Secretary's factual determinations as conclusive unless
they are unsupported by substantial evidence. Aubeuf v. Schweiker, 649 F.2d
107, 112 (2d Cir.1981); see 42 U.S.C.A. Sec. 405(g); Havas v. Bowen, 804
F.2d 783, 785 (2d Cir.1986). Substantial evidence is defined as " 'more than a
mere scintilla. It means such relevant evidence as a reasonable mind might
accept to support a conclusion.' " Richardson v. Perales, 402 U.S. 389, 401, 91
S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938)). We
have ruled that " 'expert opinions of a treating physician as to the existence of a
disability are binding on the fact finder unless contradicted by substantial
evidence to the contrary.' " Bluvband v. Heckler, 730 F.2d 886, 892 (2d
Cir.1984) (quoting Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978)); see
Hidalgo v. Bowen, 822 F.2d 294, 296-97 (2d Cir.1987); Schisler v. Heckler,
787 F.2d 76, 85 (2d Cir.1986). Further, when we review the record for
substantial evidence, "we review the record as a whole. This means that in
assessing whether the evidence supporting the Secretary's position is
substantial, we will not look at that evidence in isolation but rather will view it
in light of other evidence that detracts from it." State of New York v. Secretary
of Health and Human Services, No. 89-6217, slip op. at 3548, 903 F.2d 122 (2d
Cir. May 8, 1990). Where there is substantial evidence to support either
position, the determination is one to be made by the factfinder. See, e.g.,
Schisler v. Bowen, 851 F.2d 43, 47 (2d Cir.1988).
26
The regulations promulgated under the Act establish a five-step process by

which the Secretary is to evaluate an application for disability benefits. See
Bluvband v. Heckler, 730 F.2d at 891; 20 C.F.R. Sec. 404.1520 (1989). In
essence, if the Secretary determines (1) that the claimant is not working, (2)
that she has a "severe impairment," (3) that the impairment is not one that
conclusively requires a determination of disability, and (4) that the claimant is
not capable of continuing in her prior type of work, the Secretary must find her
disabled if (5) there is not another type of work the claimant can do. See id.
Secs. 404.1520(b)-(f); 20 C.F.R. Part 404, Subpt. P, App. 1 (1989). In the
present case, there is no dispute that the Secretary correctly proceeded through
the five steps of the process. The controversy concerns the Secretary's
determination, in the fifth step, that Alston remained capable of performing
other work.
27
The assessment of a claimant's ability to perform other work is made by

referring to charts set out in the Secretary's regulations at 20 C.F.R. Part 404,
Subpt. P, App. 2 (1989). The charts take account of a claimant's age, education,
job skills, and residual functional capacity in determining whether the claimant
is disabled from doing work in any of five categories of jobs: "very heavy,"
"heavy," "medium," "light," and "sedentary." The "sedentary" and "light"
categories are defined as follows:
28 Sedentary work. Sedentary work involves lifting no more than 10 pounds at a

(a)
time and occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties. Jobs
are sedentary if walking and standing are required occasionally and other sedentary
criteria are met.
29 Light work. Light work involves lifting no more than 20 pounds at a time with
(b)
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of performing
a full or wide range of light work, [a claimant] must have the ability to do
substantially all of these activities. If someone can do light work, we determine that
he or she can also do sedentary work, unless there are additional limiting factors
such as loss of fine dexterity or inability to sit for long periods of time.
30
20 C.F.R. Sec. 404.1567.
31
The district court correctly concluded that the Secretary's finding that Alston
was capable of performing sedentary work, as defined in the regulations, was
supported by substantial evidence. Dr. Friedman's records indicated that
Alston's condition had not worsened appreciably since 1981 and that both her
hypertension and her cardiomyopathy were being controlled with medication.
Since these records did not directly address the question of whether Alston was
disabled, their conclusions, though entitled to "some extra weight," see Schisler
v. Bowen, 851 F.2d at 47, were not binding on the Secretary. The Secretary
based his decision on the testimony of Dr. Chiaramonte, who had examined all
of Alston's medical history, including Dr. Friedman's records, and the report of
Dr. Budow, which included a residual functional capacity report prepared after
he had examined Alston. Dr. Budow's report indicated plainly that Alston was
capable of performing work that required only occasional walking, only
occasional lifting, and no lifting of more than 10 pounds.
32
Though Alston testified that the pain and symptoms she experienced did not
permit her to sit for long periods of time or to carry her groceries without
becoming short of breath, ALJ Pravitz considered these "subjective complaints
of pain and fatigability together with [Alston's] testimony, demeanor,
appearance and the medical record," Second ALJ Decision at 7, and determined
that her testimony did not credibly indicate that she could not perform even
sedentary work. In his role as the finder of fact he was fully entitled to make
such a determination, and Alston has presented no evidence to convince us that
it was clearly erroneous.
33
Though Alston's position was also supported by the opinion of Dr. Holloman at
the first hearing that Alston's ability to lift was limited to approximately five
pounds, the ALJ was not compelled to credit that testimony over the testimony
of Drs. Chiaramonte and Budow and the records of Dr. Friedman. All of the
latter evidence pointed toward a conclusion that Alston could do "sedentary"
work as that term is defined in the Secretary's regulations. We agree with the
conclusion of the district court that the evidence that Alston could perform
sedentary work as thus defined, even when viewed in the light of Alston's own
testimony and that of Dr. Holloman, was substantial.
B. The Perceived "Inconsistency" in the Secretary's Ruling

34
35
We do not agree with the district court's conclusion, however, that the court
was entitled to refuse to uphold the Secretary's finding on the basis of its view
that the Secretary's determinations were mutually inconsistent. In reaching the
conclusion that the Secretary's finding that Alston could not perform her prior
work contradicted the finding that she could perform "sedentary" work, the
district court appears to have disregarded the fact that the terms "light" and
"sedentary" have technical definitions in the regulations. Though Alston's
previous job as a balancing clerk, which required her to sit at a desk most of the
day, might be viewed as sedentary in lay terms, the classifications established
by the Secretary supersede less structured lay conceptions.
36
Further, there was substantial evidence that it was more appropriate to classify
Alston's work at Merrill as "light" rather than "sedentary" within the framework
established by the Secretary. The job plainly entailed not only sitting but also
some lifting and carrying of boxes and computer printouts. Though Alston's
ultimate estimate as to the level of weight she was required to carry (three-five
pounds) would have fit that work into the sedentary category, the ALJ was not
required to accept that testimony as credible, especially in light of (a) the
fluctuations of Alston's weight estimates during the administrative proceedings
and (b) the administrative rulings that immediately preceded the changes in her
estimates. For example, in her application for benefits, Alston stated that she
frequently had to lift weights of 10-15 pounds; the Administration's ruling
denying benefits stated that Alston was capable of lifting up to 20 pounds and
hence was able to return to her prior "light" work. At the hearing that ensued,
Alston for the first time mentioned higher weights, stating that she sometimes
had to lift boxes weighing 25-30 pounds. Immediately after Alston made that
estimate at the first hearing, ALJ Rosen stated that the job at Merrill might have
been classified as light, and not sedentary, "only because of the lifting." ALJ
Rosen's written decision confirmed that the "light" classification given to
Alston's prior work was "due to its lifting requirements." It was only at the
second hearing, following these rulings and the finding that Alston was not
capable of returning to her work at Merrill, that Alston testified that her work at
Merrill entailed lifting of only three-five pounds. This last estimate, though
pointing toward a sedentary classification for that work, was far lower than the
estimates Alston had given at the first hearing and in her application. ALJ
Pravitz was entitled to assess this final revision against the background of the
prior administrative rulings and to conclude that Alston's first estimate was the
most accurate.
37
In sum, based on the credible evidence as to the requirements of Alston's

previous job, there was no inconsistency between the finding that her prior
work, which she could no longer perform, was "light", and the finding that she
could still perform "sedentary" work. As a result, since the conclusion that
Alston was not disabled was supported by substantial evidence, the Secretary's
decision should have been affirmed.
CONCLUSION
38
For the foregoing reasons, the decision of the district court is reversed and the
case is remanded with instructions to enter judgment affirming the Secretary's
denial of benefits.

30 Soc - Sec.rep - Ser. 34, Unempl - Ins.rep. CCH 15503a Doris Alston v. Louis W. Sullivan, M.D., Secretary of Health and Human Services, 904 F.2d 122, 2d Cir. (1990)

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30 Soc - Sec.rep - Ser. 34, Unempl - Ins.rep. CCH 15503a Doris Alston v. Louis W. Sullivan, M.D., Secretary of Health and Human Services, 904 F.2d 122, 2d Cir. (1990)

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904 F.

30 Soc.Sec.Rep.Ser. 34, Unempl.Ins.Rep. CCH 15503A

United States Court of Appeals,

Christopher G. Lehmann, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J.

Defendant Secretary of Health and Human Services (the "Secretary") appeals

there was no inconsistency in the Secretary's decision. We agree with both

A. The First Administrative Decision

In February 1981, she consulted Dr. Howard S. Friedman, Chief of Cardiology

In March 1983, Alston filed an application for disability benefits under 42

not prevent you from returning to this work.

Alston sought review of this ruling by an administrative law judge ("ALJ").

After exhausting her administrative remedies, Alston commenced an action in

B. The Second Administrative Decision

On remand, the Secretary ordered a cardiovascular consultative examination

In a recommended decision dated January 30, 1987 ("Second ALJ Decision"),

C. The District Court's 1989 Decision

After an unsuccessful administrative appeal, Alston commenced the present

As a general matter, when we review a decision denying benefits under the

The regulations promulgated under the Act establish a five-step process by

The assessment of a claimant's ability to perform other work is made by

28 Sedentary work. Sedentary work involves lifting no more than 10 pounds at a

20 C.F.R. Sec. 404.1567.

B. The Perceived "Inconsistency" in the Secretary's Ruling

In sum, based on the credible evidence as to the requirements of Alston's

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