The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
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.
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.
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
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.
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.
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 ...