The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn1] [fn1] Gabriela Leal, a Fall 2004 intern in my Chambers and a second-year law student at CUNY Law School, provided substantial assistance in the research and drafting of this Opinion and Order.
Plaintiff Ira Kleinberger ("Kleinberger") brought this action
pursuant to 42 U.S.C. § 405(g) to challenge the final
determination of defendant Jo Ann B. Barnhart, the Commissioner
of Social Security ("the Commissioner"), that he was not disabled
within the meaning of the Social Security Act. Kleinberger now
moves and the Commissioner cross-moves for judgment on the
pleadings. The parties disagree as to whether the Commissioner's
denial of benefits was supported by substantial evidence. For the
reasons set forth below, Kleinberger's motion is denied and the
Commissioner's cross-motion is granted.
A. Education and Employment Evidence
Kleinberger, who is presently sixty-two years of age, obtained
a bachelor's degree in business administration from Pace
University. Throughout his career, Kleinberger was employed in
the ladies footwear industry. Early on, Kleinberger worked for
fifteen years as a buyer for Montgomery Ward. When Montgomery
Ward relocated their offices to Chicago, Kleinberger began to
work as a shoe salesman. He was employed by one company for two
years and another for eight years. He then began to work for his
most recent employer, a wholesale importer of footwear, for whom
he initially worked as a salesman. After approximately one year,
Kleinberger was promoted to sales manager, a position he held
from June 1984 until January 1990. He was again promoted in April
1990 to vice-president of sales, a position he held until he was laid off in August 1999 when his employer was bought-out and
was restructured. According to Kleinberger, his duties did not
substantially change following his second promotion.
In his Disability Report Adult, Kleinberger described his
responsibilities as follows: "Traveled throughout the US selling
shoes, managed sales force, attended trade shows." Rec. 111 (all
caps removed); see also Rec. 30 (describing his duties as
"[s]ell shoes, travel to customers, handle trade shows throughout
country, manage salesman."). Nevertheless, Kleinberger's
positions required a fairly substantial amount of physical
activity, given that he had to lift 80 to 100 pound bags of
shoes, present large numbers of samples to customers and at trade
shows, drive long distances, etc. Nevertheless, a portion of
Kleinberger's duties were also managerial in nature. For example,
he reviewed resumes of salesperson applicants, conducted an
initial training session with the sales force, reviewed reports
of sales, etc.
1. Kleinberger's Complaints
Kleinberger bases his eligibility for Social Security
Disability Insurance Benefits ("DIB") on his total hearing loss
in his left ear, type 2 (i.e., non-insulin dependent) diabetes,
hypertension, equilibrium problems, and dizziness. In his
Disability Report Adult, Kleinberger explained that "diabetes
causes me to tire easily, hearing loss makes it difficult to hear
customers. Equilibrium problems causes [sic] me to lose my
balance and I get dizzy." Rec. 110 (all caps removed). At the
administrative hearing, Kleinberger described that in November
1999 he "developed the ear problem, [which] caused dizziness and
balance problems." Rec. 40. Kleinberger further stated that he
suffers from fatigue from his medications, as well as urination
problems, which require him to go to the bathroom at least ten
times a day, and his feet swell in the afternoon. As for his
limitations, Kleinberger reported that he can only stand for an
hour or two at a time, take short walks, drive short distances
during the day light hours, and that he can only lift small
weight amounts, e.g., 10 or 20 pounds. Nonetheless, Kleinberger
reported in his DIB application materials that he spends his day
reading, using the computer, watching television, exercising,
visiting friends and his children, and going out to dinner.
2. Medical History and Diagnoses
Kleinberger became a patient of Dr. Scott Bernstein ("Dr.
Bernstein"), Kleinberger's treating physician, in June 1998. Dr.
Bernstein diagnosed Kleinberger as suffering from hypertension. On November 16, 1999, Kleinberger reported to Dr.
Bernstein that his ears were clogged and that he felt dizzy. Dr.
Bernstein initially believed that the condition was caused by a
viral infection. However, Dr. Bernard Berson ("Dr. Berson")
examined Kleinberger shortly thereafter and performed an
audiogram, which indicated that Kleinberger had suffered a
profound loss of hearing in the left ear. This was confirmed by
the exam, testing, and diagnosis of Dr. Lawrence Z. Meiteles
("Dr. Meiteles"), an ear, nose and throat specialist. Indeed, all
examining medical personnel concurred that Kleinberger is deaf is
his left ear and that he suffers from diabetes and hypertension.
Kleinberger's hearing loss resulted in additional problems, at
least initially. During his initial examination with Dr. Meiteles
on November 29, 1999, Kleinberger reported to dizziness, as well
as frequent urination and thirst. Dr. Meiteles referred
Kleinberger for balance testing, which revealed a 37% left
weakness, and recommended vestibular rehabilitation therapy. Dr.
Meiteles concluded that Kleinberger sustained a left
labyrinthitis, which is an inflammation of the inner ear that
causes dizziness.*fn3 Notably, during his January 6, 2000
visit with Dr. Bernstein, Kleinberger reported "no more dizziness
gradually resolved 4 wks ago." Rec. 144.
In addition, Kleinberger reported to Dr. Thomas King ("Dr.
King"), a consulting physician, that "he has difficulty with
hearing in room with a lot of background noise" and that this
interfered with his ability to attend meetings. Rec. 164. This
difficulty was confirmed by Dr. Habib Jamal ("Dr. Jamal"), a
consulting ear, nose, and throat specialist who conducted an
audiological examination on October 26, 2000. Dr. Jamal noted
that "patient's [sic] with sudden onset of profound unilateral
hearing loss have difficulty in situations, such as in the
presence of background noise or multiple speakers. . . ." Rec.
167. Kleinberger also complained of fatigue and imbalance to Dr.
Kleinberger was also seen by Dr. Mark Fagelman ("Dr.
Fagelman"), a urologist, on June 11, 1999, who performed a
variety of tests. Dr. Fagelman diagnosed Kleinberger with benign
prostatic hypertrophy, an enlargement of the prostrate gland,
which is "one of the common complaints of older men who visit
their primary care physicians."*fn4 There are two other medical conditions discussed in the record,
one of which occurred prior to and the other subsequent to
Kleinberger's application of benefits. In 1991, Kleinberger
underwent a right nephrectomy (removal of the kidney) due to
renal cancer. A follow-up renal sonogram preformed on September
19, 2000 was negative and revealed no evidence ...