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Dixie v. Commissioner of Social Security

June 12, 2008


The opinion of the court was delivered by: Hon. Norman A. Mordue



Plaintiff Douglas Dixie brings the above-captioned action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act, seeking review of the Commissioner of Social Security's decision to deny his application for Disability Insurance benefits. The Court referred this matter to United States Magistrate Judge Gustave J. DiBianco for a Report-Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(d). Magistrate Judge DiBianco recommended that this Court affirm the Commissioner's decision denying disability benefits and dismiss the complaint. Presently before the Court are plaintiff's objections to the Report and Recommendation.


Neither party has objected to Magistrate Judge DiBianco's thorough recitation of the background in this case. Accordingly, the Court adopts the portion of the Report and Recommendation entitled "Facts" in its entirety:

A. Non-Medical Evidence

Plaintiff was born on May 27, 1956 and was 47 years old at the time of the administrative hearing in this case. (T. 56). Prior to November of 2002, plaintiff worked in a frozen food warehouse, preparing food orders for shipment. (T. 255). Plaintiff testified that he would go into the freezer, place the cases of food on a pallet pursuant to the customer's order, and bring the food to the trucks for shipping. (T. 255). On November 16, 2002, plaintiff had a serious car accident in which his left hand was crushed. (T. 120). The accident resulted in the partial amputation of plaintiff's thumb. (T. 112). Plaintiff had two surgeries on his hand at the time of the accident, and a subsequent surgery on April 27, 2004. (T. 112, 194-95).

The record contains a form entitled "Disability Report-Adult," signed by plaintiff on January 30, 2003. (T. 64-73). In this report, plaintiff stated that he completed the 12th grade, and that he did not attend special education classes. (T. 71). Plaintiff also stated that he could read English and write "more than [his] name in English." (T. 64). The form asked plaintiff to state what were the "illnesses, injuries, or conditions" that limited his ability to work. (T. 65). Plaintiff's answer to this question stated only that the limitation on his ability to work was due to the injury to his left hand and wrist, together with the resulting loss of the use of the left hand. (T. 65). The A[dministrative] L[aw] J[udge] found, however, that based on the medical records, plaintiff did have additional severe impairments of a left shoulder disorder and residuals of left knee trauma. (T. 21). Although plaintiff also claims that he has non-insulin dependent diabetes, the ALJ found that plaintiff's diabetes was adequately managed and not "severe." (T. 22).

During the hearing, plaintiff was asked about the reading ability required at his former job. (T. 255-63). Plaintiff stated that as a warehouse worker, he did not have to keep any records himself, but he was given "paperwork" to go through when determining how to fill the pallet. (T. 255). Plaintiff stated that he would have to go into the warehouse and get a certain number of cases, then he would put a "check mark" on the form to indicate that he had completed the task. (T. 255). Plaintiff stated that he did not have to "figure out" any more than that, but did state that he participated in a yearly inventory. (T. 255). Plaintiff testified that in order to complete the inventory, he would be given a "check list," he would go to a specific location with another employee, and they would check to see how many cases were on the pallet. (T. 256).

Plaintiff stated that although he had a high school diploma, he read "very little," and he had a "learning disability." (T. 263). Plaintiff told the ALJ that plaintiff's mother had read plaintiff the notice of the hearing, and that plaintiff could only read a little bit of the "sport's page." (T. 263). Plaintiff stated that he took an oral test for his driver's license, but that he could read street signs. (T. 261). Plaintiff also testified that he did not "read that much," and he could not write even a note or a letter. (T. 263). Finally, plaintiff stated that although he could not write, he could add and subtract and became "pretty good" with numbers. (T. 264).

B. Medical Evidence of Record

Plaintiff's treating physician for his hand and wrist impairments is Dr. Jon Loftus, an orthopedic surgeon. Dr. Loftus performed the surgeries on plaintiff's left hand, beginning with the two surgeries that plaintiff underwent following his November 16, 2002 car accident. (T. 112-31). Dr. Loftus's discharge summary stated that plaintiff was admitted with multiple fractures of the left hand and a near complete amputation of the left thumb.

(T. 112). The first surgery was performed on November 16, 2002. (T. 115-17). During the first surgery, Dr. Loftus "pinned" the fractures, realigning the broken bones in plaintiff's hand. (T. 112, 115-17). Dr. Loftus performed the second surgery on November 18, 2002.

(T. 113-14). During the second surgery, Dr. Loftus amputated the tip of plaintiff's left thumb. (T. 113-14).

The record contains many subsequent reports by Dr. Loftus. (T. 136-47, 162-68, 194-96, 205-206). After the first surgery, periodic x-rays were taken to check the status of the healing process. (T. 142-47, 167-68). On November 21, 2002, Dr. Loftus stated that plaintiff's wounds were healing nicely, and the x-rays showed very satisfactory alignment.

(T. 141). The November 21, 2002 report also stated that plaintiff was beginning to feel pain in his wrist, and Dr. Loftus stated that the pain might have been due to a fracture that he had not seen. (T. 141).

On December 12, 2002, Dr. Loftus referred plaintiff to physical therapy. (T. 140). On January 13, 2003, Dr. Loftus stated that the alignment of plaintiff's fracture was "actually quite impressive." (T. 138). However, plaintiff was still complaining of wrist pain.

(T. 138). Dr. Loftus stated that plaintiff's range of motion was "absolutely terrible," but that this was "not surprising." Id. Dr. Loftus stated that plaintiff would continue with therapy. Id. On February 2, 2003, Dr. Loftus stated that the x-rays still showed "nice" alignment relative to plaintiff's injury which was "quite severe." (T. 137). The x-rays also showed evidence of healing fractures. (T. 137). Plaintiff'sfinger motion was better, but this was compared to "non-existent" the last time. (T. 137).

On June 6, 2003, Dr. Loftus stated that plaintiff continued to make progress, and that his wrist range of motion was "very good and functional," and although it was not completely painless, the range of motion was better than the doctor thought it was going to be. (T. 166). Dr. Loftus stated that the range of motion would probably be good enough for "day-to-day activities." (T. 166). Dr. Loftus stated that he believed plaintiff's chances of "meaningful high demand work" with his upper extremities were "poor." (T. 166).

On July 30, 2003, Dr. Loftus stated that plaintiff was "doing fabulously in therapy," that his wrist did not hurt at all, and that plaintiff had good flexion and extension. (T. 166). Although the doctor thought that plaintiff would never be able to bring his index finger and long fingers down all the way to his palm, he was "certainly getting them out of the way when he [went] to make a fist." (T. 166). On September 25, 2003, Dr. Loftus stated that although plaintiff was continuing to make strides, the doctor did not think that plaintiff was ever going to return to his previous work because of the degree of lifting and the low temperature in the warehouse. (T. 164). On November 20, 2003, Dr. Loftus stated that plaintiff's wrist was "functional and painless," and that he would continue to improve in therapy even if his fingers would never be normal. (T. 163).

On January 22, 2004, Dr. Loftus reported that plaintiff had reached a plateau in therapy. (T. 162). Dr. Loftus stated that because of the limitation in the motion of plaintiff's fingers and the shortness of the thumb, plaintiff could not really "oppose [his fingers and thumb]." Id. Dr. Loftus suggested an operation involving "capsulotomies" of the PIP joints of the long fingers. Id. This recommendation resulted in plaintiff's surgery of April 27, 2004. The purpose of the surgery on April 27, 2004 was to improve the range of motion in plaintiff's fingers by opening up the joint capsules and also by freeing the tendons in plaintiff's hand that might have adhered to other tissue. (T. 194). Dr. Loftus's operative note from the April 27, 2004 surgery stated that plaintiff's range of motion "dramatically improved compared to preoperatively." (T. 195).

On April 29, 2004, Dr. Loftus noted that plaintiff began a post-surgery therapy program, and on May 7, 2004, Dr. Loftus stated that plaintiff was "doing great." (T. 205, 206). Dr. Loftus noted that plaintiff was making "significant strides" in physical therapy, and the doctor recommended that plaintiff continue "aggressive therapy." (T. 206).

The record also contains the physical therapy notes that are contemporaneous to Dr. Loftus's reports. (T. 133-35). Plaintiff's initial consultation with the physical therapist was on November 21, 2002. (T. 135). Between December 17, 2002 and February 5, 2003, plaintiff had sixteen physical therapy sessions. (T. 133-35). Plaintiff was treated with moist heat and range of motion exercises. Id. On January 28, 2003, plaintiff had a slight increase in the range of motion at his fifth finger. (T. 134).

On January 29, 2003, plaintiff reported numbness in his forearm, thumb, and index finger. (T. 133). On January 29, plaintiff also complained of shoulder pain and limitation of movement with internal rotation of his shoulder. (T. 134-33). Shay Klein, the physical therapist stated that an "impingement" test of the shoulder was positive. (T. 133). There was pain and discomfort on palpation of the anterior aspect of the shoulder. External rotation of the shoulder combined with abduction was also painful. Id. The therapist noted that plaintiff was going to discuss his shoulder problem with Dr. Loftus on "Monday." Id.

The record contains additional physical therapy notes. (T. 169-80). Between February 7, 200[3] and January 2[2], 2004, plaintiff attended sixty one physical therapy sessions. (T. 171-80). Plaintiff's physical therapy focused on his hand and wrist impairment. The treatments included moist heat, wrapping plaintiff's fingers into flexion, and squeezing exercises. Id. On July 30, 2003, Physical Therapist Klein noted that Dr. Loftus was pleased with plaintiff's progress, including his wrist movement and forearm movement. (T. 177).

The physical therapist also stated that Dr. Loftus noted improvement in the range of motion of plaintiff's fingers into flexion. Id. Although the reports indicate some improvement, by December 30, 2003, the physical therapist stated that plaintiff was reporting "no change," and by January 22, 2004, the therapist noted that Dr. Loftus was ...

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