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Terminello v. Astrue

July 31, 2009


The opinion of the court was delivered by: John F. Keenan, United States District Judge

Memorandum Opinion & Order

This is an action for review of the Commissioner's decision that plaintiff Nancy A. Terminello is not entitled to disability insurance benefits. Currently pending are cross-motions for judgment on the pleadings. For the reasons below, the Commissioner's motion is granted, and plaintiff's motion is denied.


Ms. Terminello suffers from a heart condition, chronic chest pain, fatigue and anxiety, and claims that she has been unable to work since January 1, 2004. At the time of the onset of her alleged disability, she was forty-four years old, had a high school diploma, and was working eight hours per week as a receptionist in a medical office in Bronx, N.Y.

On March 10, 2004, Ms. Terminello filed an application for disability insurance benefits under the Social Security Act (the "Act"). After her application was denied at the initial level of review, she requested a hearing before an administrative law judge ("ALJ"). At the hearing which was held on August 5, 2005, plaintiff was represented by counsel. The evidence presented to the ALJ consisted of Ms. Terminello's medical records, which included functional assessments by Ms. Terminello's treating physicians and a state agency physician, and Ms. Terminello's own testimony about her limitations.

I. Record Medical Evidence

The medical evidence in the record comprises the reports of Dr. Marshall I. Matos, Ms. Terminello's treating cardiologist, Dr. Norbert W. Sander, another of her treating physicians, and state agency physician Dr. Carol A. Wakeley. The findings of each of these medical professionals are summarized below.

A. Dr. Marshal I. Matos

Ms. Terminello has a history of cardiac impairment. She has been treated for mitral valve disease and an atrial septal defect*fn2 since at least May 1986, when she began seeing her treating cardiologist, Dr. Marshall I. Matos. (Transcript of Administrative Record ("Tr.") 174.) After cardiac catheterization in February 1999, Dr. Matos performed a closure/repair of plaintiff's atrial septal defect on June 30, 1999. (Id.) Ms. Terminello claimed to have lost her prior job as a medical biller after this procedure because her employer could not hold open her position during her recovery. (Tr. 54, 239.) After the procedure, plaintiff began to complain to Dr. Matos of chronic chest discomfort, resulting in a removal of her sternal wires by Dr. Matos on April 19, 2000. (Tr. 174.) Since then, Ms. Terminello has complained of chronic chest pain and fatigue interfering with her ability to work.

In April 2004, Dr. Matos reported on plaintiff's recent visit to his office. During that visit, Ms. Terminello stated that her chronic chest discomfort was relieved in the evenings with the medication Aleve and that she was fatigued by day's end. (Tr. 174.) She denied shortness of breath, palpitations and dizziness. (Id.) Her other medications included Kerlone, Zomig and aspirin. (Id.) Her most recent echocardiogram, performed on August 7, 2003, reflected normal left ventricular size and systolic function. (Tr. 175.) The test also revealed a calcified anterior mitral valve leaflet with moderate mitral regurgitation, and mild tricuspid valve regurgitation. (Id.) Ms. Terminello had not undergone any recent cardiac stress testing. (Id.) On reports dated July 1, 2004, October 22, 2004, and March 3, 2005, Ms. Terminello again denied palpitations or dizziness. Dr. Matos specifically noted that she was doing well on the October 22, 2004 and March 3, 2005 reports.

B. Dr. Norbert W. Sander

Dr. Nortbert W. Sander, Ms. Terminello's treating physician since October 2000, reported on her condition in connection with her application for disability insurance benefits based on her December 15, 2003 visit to his office. (See Tr. 160-164.) Dr. Sander found that Ms. Terminello suffered from "fatigue" and "pressure [and] aching pain" in her chest, including atrial arrhythmia. (Tr. 160-61.) He also noted that she had normal blood pressure, showed no signs of psychiatric disorder, and that her episodes of fatigue and pain lasted for three to five hours daily. (Id.) Without specifying the limitations, Dr. Sander opined that Ms. Terminello's abilities to lift and carry, to stand or walk, and to push or pull were limited, including her postural and manipulative functioning. (Tr. 163.) Additionally, Dr. Sander listed her medications as Aleve, Vioxx and Kerlone, and noted that Ms. Terminello's chest pain was precipitated by work, stress or lifting, and relieved by rest and medication. (Tr. 161.)

On or about July 5, 2005, Dr. Sander filled out a physical assessment form on Ms. Terminello. This form indicates that plaintiff's impairment did not impact her ability to stand, walk or sit. (Tr. 190-91.) It also states that Ms. Terminello could lift less than ten pounds and that pushing and pulling were affected by her impairment. (Id.) Dr. Sander's medical report offered a diagnosis of atrial septal defect, chronic chest pain, and chronic fatigue syndrome, with treatment including monthly vitamin B12 shots and a cardiologist follow-up. (Tr. 197.)

Dr. Sander also assessed Ms. Terminello's mental ability to do work-related activities on a day-to-day basis in a regular work setting on or about August 1, 2005. He noted that plaintiff had no useful ability to function in this area because her pain and depression put her under stress. (Tr. 228-31.) However, the report noted that Ms. Terminello's abilities to make occupational and performance adjustments were good, very good, or unlimited. (Tr. 229-31.) Specifically, Dr. Sander opined that plaintiff had an "Unlimited/Very Good" ability to follow work rules, relate to co-workers, deal with the public, interact with supervisors and deal with work stress, and a good ability to maintain attention and concentration in carrying out job instructions. (Tr. 229-30.) Dr. ...

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