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Brodbeck v. Astrue

March 7, 2008


The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge



Plaintiff Arlene M. Brodbeck brings the above-captioned action pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) of the Social Security Act, seeking a review of the Commissioner of Social Security's decision to deny her application for disability benefits and supplemental security income benefits. This matter was referred to Magistrate Judge George H. Lowe for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(d). Magistrate Judge Lowe recommended that this Court reverse the Commissioner's decision to deny benefits and remand this matter. Presently before the Court are the Commissioner's objections to two aspects of Magistrate Judge Lowe's Report and Recommendation.


The Court adopts the Procedural History as set forth by Magistrate Judge Lowe in the Report and Recommendation in its entirety:

Plaintiff filed an application for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") on August 12, 2003. (Administrative Transcript ("T") at 48-50, Dkt. No. 6.) The application was denied initially. (T. at 32-37.) Plaintiff requested a hearing before an Administrative Law Judge ( "ALJ") which was held on May 20, 2004. (T. at 39-41, 179-204.) On June 25, 2004, the ALJ issued a decision finding that Plaintiff was not disabled. (T. at 25-31.)

Plaintiff appealed to the Appeals Council, and the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on January 18, 2004.*fn2 (T. at 4-6.) Plaintiff commenced this action on February 28, 2005. (Dkt. No. 1.) (Report and Recommendation, Dkt. No. 14, pp. 1-2).


Plaintiff was born on May 18, 1959 and was 45 years old at the time of the administrative hearing on May 20, 2004. (T. 25, 26, 48)*fn3. Plaintiff is single, lives alone and has 4 grown children.

(T. 99, 190). Plaintiff has a 10th grade education and although she studied for her GED, she has not taken the test. (T. 184). From March 1984 until February 2002, plaintiff was an "independent" cab driver. (T. 61). From February 2002 until November 2002, plaintiff was employed as a cashier/attendant at a fuel station. (T. 61). Plaintiff was last employed from September 2002 until

May 2003 by Dunkin' Donuts as a cashier/baker. (T. 61).

In February 2004, plaintiff completed a vocational evaluation at VESID to assist with employment planning. (T. 91-93). Upon completion of her evaluation, the counselor suggested that plaintiff delay further planning as she may need further surgery. (T. 95). Plaintiff's last day of work was May 5, 2003.*fn4 (T. 61). Plaintiff alleges she is disabled due to cubital tunnel syndrome.*fn5 (T. 26).

A. Plaintiff's Medical Treatment

Dr. Michael Nancollas first treated plaintiff for her alleged disabling condition on July 11, 2001.*fn6 (T. 119). She complained of right hand pain and numbness for the last 2 years. (T. 119). Dr. Nancollas diagnosed plaintiff with right cubital tunnel syndrome and prescribed a splint to wear.

(T. 119). Dr. Nancollas advised plaintiff that she could return to work the next day without restriction. (T. 119). On August 15, 2001, Dr. Nancollas examined plaintiff and noted that her complaints and condition were unchanged. (T. 118). Dr. Nancollas diagnosed plaintiff with bilateral cubital tunnel syndrome (right greater than left). (T. 118). Dr. Nancollas prescribed a course of physical therapy and again advised plaintiff that she could return to work without restrictions. (T. 118). Dr. Nancollas also referred plaintiff to Dr. Cari Allen Jones for electric diagnostic studies to rule out any ulnar or medial nerve compressions. (T. 118).

Dr. Cari Allen Jones examined plaintiff once on August 31, 2001. Dr. Jones performed nerve conduction studies which were abnormal. (T. 100). Dr. Jones diagnosed plaintiff with bilateral moderate cubital tunnel syndrome (more affected on right than left). (T. 100). However, Dr. Jones noted that this was "without evidence of axonal involvement". (T. 100). Dr. Jones found no evidence of carpal tunnel syndrome, neuropathy or radiculopathy. (T. 100).

On September 17, 2001, plaintiff returned to Dr. Nancollas to discuss the results of Dr. Jones' testing. (T. 117). Physical therapy had not resolved plaintiff's complaints, therefore, Dr. Nancollas recommended surgery with post-op therapy. (T.117). Dr. Nancollas noted that plaintiff would be fully disabled beginning on November 1, 2001 however, she could return to work after surgery with limitations on gripping and lifting. (T. 116-117).

Plaintiff underwent a right cubital tunnel release on November 1, 2001. (T. 105). She had one post-operative visit with Dr. Nancollas and then did not treat with Dr. Nancollas again until a year and a half later. (T. 113-114). On April 11, 2003, plaintiff complained of pain in her left elbow.

(T. 113). Dr. Nancollas gave her a night splint and pain medication. (T. 113). Plaintiff was advised that she could return to work with the following restrictions: no more than 40 hours per week; no lifting over 10 pounds; no repetitive motion; and limited pushing and pulling. (T. 113).

On May 13, 2003, plaintiff advised Dr. Nancollas that she was terminated from work as her employer could not accommodate her restrictions. (T. 111). Dr. Nancollas noted that although plaintiff was unemployed, she could work. (T. 111). Dr. Nancollas prescribed a course of physical therapy and pain medications. (T. 111). On May 15, 2003, plaintiff began physical therapy at Physical Therapy Plus. (T. 145). Plaintiff received therapy for her right shoulder and elbows from May 2003 until August 2003. (T. 139-145).

Plaintiff returned for three additional examinations with Dr. Nancollas in June, August and September 2003. In September, Dr. Nancollas concluded that additional surgery for her left cubital tunnel syndrome was necessary. (T. 109-111, 168). During those visits, Dr. Nancollas continually noted that plaintiff could work. (T. 109-111, 168). On October 31, 2003, plaintiff underwent surgery for a left cubital tunnel release. (T. 166). At that time, Dr. Nancollas noted she was disabled. (T.

166). Plaintiff returned for physical therapy on November 17, 2003. (T. 137). She received therapy 3 times a week until December 30, 2003. (T. 133). Plaintiff returned once more to therapy in February 2004 and treated 3 times a week until her last noted visit on March 22, 2004. (T. 129).

Plaintiff continued to treat with Dr. Nancollas after her surgery and had 5 subsequent visits with the last examination on March 25, 2004. (T. 160-165). At the March 2004 visit, Dr. Nancollas noted that plaintiff was moderately partially disabled. (T. 160).

During the time that plaintiff treated with Dr. Nancollas, she also received treatment from Marsha Snyder, M.D. for complaints of pain in her lower back. (T. 152, 154-155). On December 30, 2003, plaintiff complained of lower back pain beginning after she was "playfully pushed off the bed" by her boyfriend a number of years ago. (T. 154). Upon examination, Dr. Snyder noted that plaintiff was in no acute distress. (T. 154). Plaintiff's walk test was symmetrical and pain free. (T. 154). Plaintiff exhibited some pain upon flexion at 80 degrees but extension and lateral bending were full. (T. 154). Straight leg raising was negative, sensation in lower extremities was intact and toe/heel ...

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