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KLEIMAN v. BARNHART

April 8, 2005.

EKATERINI KLEIMAN, Plaintiff,
v.
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.

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.*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. 5-7.

  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.*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 ...

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