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December 6, 2004.

JO ANN B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn1] [fn1] Gabriela Leal, a Fall 2004 intern in my Chambers and a second-year law student at CUNY Law School, provided substantial assistance in the research and drafting of this Opinion and Order.


Plaintiff Ira Kleinberger ("Kleinberger") brought this action pursuant to 42 U.S.C. § 405(g) to challenge the final determination of defendant Jo Ann B. Barnhart, the Commissioner of Social Security ("the Commissioner"), that he was not disabled within the meaning of the Social Security Act. Kleinberger now moves and the Commissioner cross-moves for judgment on the pleadings. The parties disagree as to whether the Commissioner's denial of benefits was supported by substantial evidence. For the reasons set forth below, Kleinberger's motion is denied and the Commissioner's cross-motion is granted.


  A. Education and Employment Evidence

  Kleinberger, who is presently sixty-two years of age, obtained a bachelor's degree in business administration from Pace University. Throughout his career, Kleinberger was employed in the ladies footwear industry. Early on, Kleinberger worked for fifteen years as a buyer for Montgomery Ward. When Montgomery Ward relocated their offices to Chicago, Kleinberger began to work as a shoe salesman. He was employed by one company for two years and another for eight years. He then began to work for his most recent employer, a wholesale importer of footwear, for whom he initially worked as a salesman. After approximately one year, Kleinberger was promoted to sales manager, a position he held from June 1984 until January 1990. He was again promoted in April 1990 to vice-president of sales, a position he held until he was laid off in August 1999 when his employer was bought-out and was restructured. According to Kleinberger, his duties did not substantially change following his second promotion.

  In his Disability Report Adult, Kleinberger described his responsibilities as follows: "Traveled throughout the US selling shoes, managed sales force, attended trade shows." Rec. 111 (all caps removed); see also Rec. 30 (describing his duties as "[s]ell shoes, travel to customers, handle trade shows throughout country, manage salesman."). Nevertheless, Kleinberger's positions required a fairly substantial amount of physical activity, given that he had to lift 80 to 100 pound bags of shoes, present large numbers of samples to customers and at trade shows, drive long distances, etc. Nevertheless, a portion of Kleinberger's duties were also managerial in nature. For example, he reviewed resumes of salesperson applicants, conducted an initial training session with the sales force, reviewed reports of sales, etc.

  B. Medical Evidence

  1. Kleinberger's Complaints

  Kleinberger bases his eligibility for Social Security Disability Insurance Benefits ("DIB") on his total hearing loss in his left ear, type 2 (i.e., non-insulin dependent) diabetes, hypertension, equilibrium problems, and dizziness. In his Disability Report Adult, Kleinberger explained that "diabetes causes me to tire easily, hearing loss makes it difficult to hear customers. Equilibrium problems causes [sic] me to lose my balance and I get dizzy." Rec. 110 (all caps removed). At the administrative hearing, Kleinberger described that in November 1999 he "developed the ear problem, [which] caused dizziness and balance problems." Rec. 40. Kleinberger further stated that he suffers from fatigue from his medications, as well as urination problems, which require him to go to the bathroom at least ten times a day, and his feet swell in the afternoon. As for his limitations, Kleinberger reported that he can only stand for an hour or two at a time, take short walks, drive short distances during the day light hours, and that he can only lift small weight amounts, e.g., 10 or 20 pounds. Nonetheless, Kleinberger reported in his DIB application materials that he spends his day reading, using the computer, watching television, exercising, visiting friends and his children, and going out to dinner.

  2. Medical History and Diagnoses

  Kleinberger became a patient of Dr. Scott Bernstein ("Dr. Bernstein"), Kleinberger's treating physician, in June 1998. Dr. Bernstein diagnosed Kleinberger as suffering from hypertension. On November 16, 1999, Kleinberger reported to Dr. Bernstein that his ears were clogged and that he felt dizzy. Dr. Bernstein initially believed that the condition was caused by a viral infection. However, Dr. Bernard Berson ("Dr. Berson") examined Kleinberger shortly thereafter and performed an audiogram, which indicated that Kleinberger had suffered a profound loss of hearing in the left ear. This was confirmed by the exam, testing, and diagnosis of Dr. Lawrence Z. Meiteles ("Dr. Meiteles"), an ear, nose and throat specialist. Indeed, all examining medical personnel concurred that Kleinberger is deaf is his left ear and that he suffers from diabetes and hypertension.

  Kleinberger's hearing loss resulted in additional problems, at least initially. During his initial examination with Dr. Meiteles on November 29, 1999, Kleinberger reported to dizziness, as well as frequent urination and thirst. Dr. Meiteles referred Kleinberger for balance testing, which revealed a 37% left weakness, and recommended vestibular rehabilitation therapy. Dr. Meiteles concluded that Kleinberger sustained a left labyrinthitis, which is an inflammation of the inner ear that causes dizziness.*fn3 Notably, during his January 6, 2000 visit with Dr. Bernstein, Kleinberger reported "no more dizziness — gradually resolved — 4 wks ago." Rec. 144.

  In addition, Kleinberger reported to Dr. Thomas King ("Dr. King"), a consulting physician, that "he has difficulty with hearing in room with a lot of background noise" and that this interfered with his ability to attend meetings. Rec. 164. This difficulty was confirmed by Dr. Habib Jamal ("Dr. Jamal"), a consulting ear, nose, and throat specialist who conducted an audiological examination on October 26, 2000. Dr. Jamal noted that "patient's [sic] with sudden onset of profound unilateral hearing loss have difficulty in situations, such as in the presence of background noise or multiple speakers. . . ." Rec. 167. Kleinberger also complained of fatigue and imbalance to Dr. Jamal.

  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 ...

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