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LEONOVICH v. BARNHART

February 26, 2003

SUZETTE LEONOVICH, PLAINTIFF,
V.
JO ANN B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa, District Judge

DECISION AND ORDER

I. INTRODUCTION

Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner") who denied her application for disability benefits. Before the Court is the Commissioner's motion (docket #3) seeking an order reversing her decision and remanding the case, pursuant to sentence four of § 405(g), for further hearings, and plaintiff's motion (docket #5) for summary judgment, seeking a reversal of the Commissioner's decision and a remand for calculation of benefits only. For the reasons stated below, the Court grants plaintiff's motion and remands the case pursuant to sentence four of § 405(g) for calculation of benefits only.

II. PROCEDURAL BACKGROUND

Plaintiff filed an application for disability insurance benefits on October 21, 1997, alleging she was disabled as of November 19, 1996, as a result of problems with her hands. The Commissioner denied her application initially and on reconsideration. Plaintiff then filed a request for a hearing before an Administrative Law Judge ("ALJ") and the hearing was held on October 9, 1998. The ALJ issued a written decision on May 24, 1999, finding that plaintiff was not disabled, and that she retained the residual functional capacity to perform sedentary work. The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on March 8, 2002. Plaintiff commenced this civil action on April 22, 2002.

III. PLAINTIFF'S WORK HISTORY

Plaintiff was born on August 23, 1961. She is a high school graduate who also earned a teaching assistant certificate from Corning Community College. From 1979 to 1984, plaintiff worked as a sales clerk and bookkeeper at a Sears Catalogue Store. She then from September, 1981*fn1 to November 18, 1996, worked as a teaching assistant, first at Bradford Central School, then at Bath Central School.

IV. MEDICAL HISTORY

On February 8, 1996, Dr. Phillips diagnosed wrist pain and, for a treatment plan, wrote," cock up splints . . . Advil . . . x-ray tonight." R. at 22. Plaintiff continued to see Dr. Phillips every two to four weeks and, on July 9, 1996, plaintiff underwent an electromyogram ("EMG") of her hands at Dr. Phillips' direction. The examining neurologist, Dr. Paul Buckthal, wrote that plaintiff appeared to be suffering from either de Quervain's Syndrome*fn2, or disruption of the carpal metacarpal joint capsule. R. at 263-64.

On July 25, 1996, plaintiff was evaluated at the Hand Management Center of St. Joseph's Hospital in Elmira, New York, by Jill Townsend, PT, CHT. Ms. Townsend wrote in her assessment that plaintiff's problems included significant pain, swelling and diminished range of motion of the right thumb resulting in decreased ability to incorporate that hand into functional activities of daily living. She instructed plaintiff on the use of heat and cold, and fitted her with a spica*fn3 splint with the goal of resting the joints and tendons, thereby reducing pain and edema*fn4. Plaintiff then began a course of physical therapy and experienced some improvements. R. 158-59. As of September 9, 1996, Ms. Townsend noted that plaintiff had returned to work and that she was managing, although she noted some increase in plaintiff's symptoms. R. at 161. Plaintiff was fitted with another spica splint in October 1996, with the result that her pain decreased and mobility increased. R. at 163.

On November 19, 1996, plaintiff left work due to pain in her left elbow. Plaintiff continued physical therapy and after fifteen physical therapy visits, Kimi Archer, MSPT*fn5 at Ira Davenport Memorial Hospital in Bath, New York, concluded in a report dated March 6, 1997, that plaintiff, "had not received any significant improvement in her hand function and did have continued reports of pain specifically after being seen by three doctors prior to her last apt. [sic.]" R. at 166.

As a result of being right-handed,, plaintiff had relied on her left arm more when her right arm became sore, resulting in injury to her left elbow. R. at 43. As a result of her left elbow injury, plaintiff increased the use of her right arm, which led to increased pain in her right thumb and wrist. R. at 164. In his examination notes of November 18, 1996, Dr. Phillips wrote that plaintiff was totally disabled. R. at 236.

In December 1996, plaintiff began another course of physical therapy at Ira Davenport Memorial Hospital. She attended a few appointments, but experienced continued pain. R. at 166. She saw Dr. Steven Garner, an orthopedic surgeon, on January 30, 1997. Dr. Garner found a positive Finkelstein*fn6 test on the right, with some discomfort of the thenar eminence, ulnar area and MP joint. He reported that plaintiff's left wrist was tender, had a positive Tinel's sign*fn7 and had decreased sensation along the ulnar nerve distribution. Dr. Garner thought plaintiff might have de Guervain's [sic]*fn8 and ulnar neuropathy of the left hand. He wrote in a January 30, 1997, letter to Dr. Phillips that, "the hope for a resolution may be somewhat grim." R. at 178.

In connection with her workers' compensation claim, Dr. John S. Forrest evaluated plaintiff on January 29, 1997. R. at 154. She complained of bitter pain in her right hand and at the base of her thumb, with shakiness of the hands. He noted that her left hand had tingling on the outer fingers which sometimes radiated up to her elbow. Plaintiff told Dr. Forrest that she could not wash, do her dishes, clean, or lift, and that she spent her time sitting and reading. R. at 155.

Dr. Forrest reviewed x-rays taken in February and December 1996 and noted that plaintiff appeared in considerable pain, crying with ordinary hand movements. He observed swelling and tenderness of the right carpometacarpal joint of her thumb, and positive Tinel's and Phalen's*fn9 signs by her right elbow. He noted the following: her hand grip was reduced bilaterally, with only seven pounds on the right, and fifteen pounds on the left; and her side pinch grip was also reduced, at two pounds on the right and four pounds on the left. On her left wrist and elbow, he remarked there was a positive Tinel's sign, but a negative Phalen's sign. Dr. Forrest diagnosed plaintiff as having a probable marked sprain of the MP and CMP (carpometacarpal) joints. He also wrote that there was ulnar nerve neuritis of her left elbow and wrist, possibly due to overuse. R. at 154-57. Dr. Forrest considered plaintiff to have a "marked temporary partial" disability. R. at 157.

On March 11, 1997, plaintiff was again evaluated by Ms. Townsend at St. Joseph's Hospital. R. at 167-69. Although, Ms. Townsend observed that plaintiff's right thumb was not swollen, she did make a number of abnormal findings. She found the range of motion of plaintiff's right thumb was only 60% of that of the left thumb, and that plaintiff's right hand grip and pinch strength were only 30% to 50% of her left hand. Ms. Townsend also found palpable tenderness of some of the hand joints, and that the Phalen s sign (used to test for carpal tunnel syndrome) was positive bilaterally, as was the Tinel's test over the ulnar nerve at plaintiff's wrist and elbow. R. at 167-69.

On May 13, 1997, plaintiff saw Dr. Russell J. Striff, Jr., an orthopedic surgeon. R. at 170-72. She complained to him of having constant pain in her left hand, tingling in her left elbow and constant pain in her right thumb. Plaintiff also spoke of pain in both arms. Dr. Striff found that plaintiff's range of motion in both thumbs was normal, and an EMG was also normal. Dr. Striff's findings included right trigger thumb by history*fn10, left ulnar nerve entrapment, and fibromyalgia of the arms. Dr. Striff thought plaintiff's problems would not be resolved with surgery, and thought she would be better off seeing a rheumatologist, recommending Dr. Kenneth Gold. He also opined that,

[s]he is disabled from her regular job. The temporary restrictions have to do with power grasp and lifting, carrying, pushing or pulling more than five pounds. There will almost certainly be permanent restrictions and the restrictions will almost certainly be severe.

R. at 172.

Pursuant to Dr. Striff's suggestion, plaintiff was seen by Dr. Kenneth Gold, a rheumatologist, on May 28, 1997. R. at 173-76. Plaintiff told Dr. Gold that she was no longer able to do her housework. She complained of numbness and tingling in her fourth and fifth fingers. Dr. Gold found that her right thumb was tender even to light touch. Dr. Gold also found that plaintiff's grip strength was markedly decreased on the right side, and that she experienced mild discomfort during movement of her wrists. However, Dr. Gold, disagreed with Dr. Striff, and ruled out nerve entrapment and fibromyalgia. He diagnosed plaintiff as suffering from myofascial pain disorder. Dr. Gold wrote in his May 28, 1997 report that,

[p]rognosis at this point is quite poor as symptoms have been present 15 months. She has been off work now for six months without any significant improvement . . . Prognosis of this is quite poor. I think that the likelihood of her benefitting from vocational rehab is quite limited given the fact that both upper extremities are inoperable and she would be unable to do any type of sedentary or manual labor with her current problem. . . .

R. at 175-76.

Subsequently, in a June 9, 1997, letter, Dr. Gold wrote that although he had permitted plaintiff to return to work, that decision was based on false information. He stated that because he was told by the Workers' Compensation carrier that plaintiff was willing to return, and that her employer would take her with her restrictions, he did not consult with plaintiff before permitting her to return to work. He also stated in the letter,

I evaluated [plaintiff] only for the question as to whether or not she had fibromyalgia. I am not involved in her on-going care regarding her musculoskeletal pain problem and do not feel that I am at liberty to be issuing work restrictions, etc. I defer to Dr. Eric Phillips who is seeing her on an on-going basis with respect to this.

R. at 177 (emphasis in original).

On June 2, 1997, plaintiff returned to orthopedic surgeon Dr. Garner. He injected her thumb area, apparently with an anti-inflammatory. However, plaintiff developed an inflammation from the ...


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