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«UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Wendi Carlson, Civil No. 06-3289 (ADM/SRN) Plaintiff, v. REPORT AND RECOMMENDATION Michael J. ...»

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CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 1 of 23

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Wendi Carlson, Civil No. 06-3289 (ADM/SRN)

Plaintiff,

v. REPORT AND RECOMMENDATION

Michael J. Astrue, Commissioner of Social Security, Defendant.

Lionel H. Peabody, Esq., Peabody Law Office, 301 West 1st Street, Suite 600, Duluth, MN 55802, on behalf of Plaintiff.

Lonnie F. Bryan, Esq., Office of the United States Attorney, 300 South 4th Street, Suite 600, Minneapolis, MN 55415, on behalf of Defendant.

SUSAN RICHARD NELSON, United States Magistrate Judge Pursuant to 42 U.S.C. § 405(g), Plaintiff Wendi Carlson seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”), who determined that Plaintiff was not statutorily disabled and therefore not entitled to disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416(i) and 423. The parties have submitted cross motions for summary judgment. (Doc. Nos. 8, 12.) The motions have been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and District of Minnesota Local Rule 72.1. For the reasons set forth below, this Court recommends that Plaintiff’s Motion for Summary Judgment (Doc. No. 8) be denied and Defendant’s Motion for Summary Judgment (Doc. No. 12) be granted.

CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 2 of 23

I. BACKGROUND

A. Procedural History Plaintiff filed an Application for Disability Insurance Benefits on March 11, 2004, alleging disability as of March 4, 2004, due to carpal tunnel syndrome in both wrists, and chronic pain, numbness, weakness, tendinitis, and arthritis in both hands. (Tr. at 14, 26, 53-55, 75.) Her application was denied initially and upon reconsideration. (Id. at 25-28.) Plaintiff appealed and sought a hearing before an Administrative Law Judge (ALJ), which was held on November 3, 2005, before ALJ Larry Meuwissen. (Id. at 383.) The ALJ denied Plaintiff’s claim on January 17, 2006, and Plaintiff filed a request for review with the Appeals Council, which affirmed the ALJ’s decision. (Id. at 6, 22.) Plaintiff filed her Complaint in federal court on August 10, 2006. (Doc. No. 1.) She asks the Court to reverse the ALJ on the following grounds: (1) the ALJ failed to consider Plaintiff’s age; (2) the ALJ did not give controlling weight to work restrictions imposed by Plaintiff’s treating physician; (3) the ALJ did not determine the extent to which Plaintiff’s impairments eroded the full range of work at the light exertional level; (4) the ALJ improperly disregarded the testimony of the Vocational Expert (VE);

and (5) the VE’s testimony did not establish that work exists in significant numbers within Plaintiff’s residual functional capacity (RFC). Defendant disagrees with all of Plaintiff’s contentions and urges the Court to find that the ALJ’s findings are supported by substantial evidence in the record.

–  –  –

Plaintiff was fifty-two years old at the time of the ALJ’s decision and was therefore a person considered to be closely approaching advanced age. (Tr. at 20; see 20 C.F.R. § 404.1563.) Prior to her alleged onset of disability date, Plaintiff worked at the United States Postal Service (USPS) as a CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 3 of 23 data conversion clerk. (Tr. at 75-76.) The USPS continuously restructured Plaintiff’s position to accommodate her medical condition, but at the end of her employment, Plaintiff hardly performed any work at all. (Id. at 75.) Plaintiff stopped working at USPS on March 4, 2004. (Id. at 156.) According to Plaintiff, USPS was investigating her for misrepresenting a medical condition in order to obtain benefits, and she quit rather than face termination. (Id. at 392.) Plaintiff lives alone and is able to drive, shop, cook, and do her own laundry, with some assistance from friends. (Id. at 389, 397.) She graduated from high school, has two years of college education, and would like to work. (Id. at 390, 398.) She enjoys reading and reads often. (Id. at 397.) Plaintiff can walk four or five miles at a time and has no problems standing. (Id. at 394-95.) She can lift about ten pounds. (Id. at 395.) However, Plaintiff’s hands fall asleep if she sits in one position for too long, and she can type for only fifteen minutes at a time. (Id. at 395, 404.) Plaintiff most recently worked part-time, twenty-five to thirty hours a week, as an office manager for Northern States Basement. (Id. at 390-91.) She answered telephones, filed, scheduled appointments, and maintained the appointment books for sales representatives and installation workers.

(Id. at 390.) Plaintiff stopped working at Northern States Basement because one of the owners thought that if business increased, Plaintiff would not be able to keep up with the computer work. (Id.

at 390, 393.)

–  –  –

Plaintiff has a long history of carpal tunnel syndrome and related symptoms, for which she first sought treatment in 1997. (Id. at 194, 204.) In November 1997, Plaintiff underwent an endoscopic carpal tunnel syndrome release bilaterally. (Id. at 204.) Nevertheless, Plaintiff continued to have CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 4 of 23 problems with her hands and wrists.





On November 30, 1999, Plaintiff underwent an independent medical evaluation (IME) with an orthopedic surgeon, Dr. Steven Bardolph. (Id. at 354.) Dr. Bardolph concluded that Plaintiff could perform light duty work for eight hours a day as long as she was restricted from repetitive work. (Id. at 358.) Dr. Bardolph felt that Plaintiff’s complaints of pain were not supported by the objective medical evidence. (Id. at 358.) On May 31, 2001, Plaintiff saw Dr. Matthew J. Eckman, who became her primary treating physician, for an evaluation of her continued wrist and hand problems. (Id. at 204.) Dr. Eckman’s physical examination of Plaintiff revealed full wrist flexion and extension, localized tenderness in both wrists, no swelling, and full strength, but some guarding during testing. (Id. at 206.) Dr. Eckman’s impression was that Plaintiff suffered from a bilateral wrist strain with a propensity toward tendinitis related to overuse. (Id. at 207.) Plaintiff was working part-time at USPS, and Dr. Eckman recommended that she continue to work twenty hours a week. (Id.) He instructed Plaintiff to avoid heavy and repetitive use of her hands, such as frequent typing, writing, and pounding. (Id.) Plaintiff saw Dr. Eckman again on August 16, 2001. (Id.) Plaintiff reported aching, swelling, and numbness in her wrists, fingers, and hands. (Id.) Dr. Eckman reviewed magnetic resonance imaging (MRI) results and concluded that Plaintiff’s median nerve in both wrists had an elliptical configuration consistent with scarring. (Id.) There were no other abnormalities. (Id.) Upon physical examination of Plaintiff, Dr. Eckman noted no limitations on flexion or extension with her wrists or fingers. (Id.) Dr. Eckman found no inflammation, pain, or tender joints and only incidental sensitivity with carpal tunnel pressure. (Id.) His impression was chronic wrist strain exacerbated with overuse CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 5 of 23 and repetitive stress, and prior carpal tunnel syndrome with some scarring. (Id.) On September 2, 2001, Plaintiff went to the emergency room at St. Mary’s Medical Center because she could not lift her wrist. (Id. at 194.) Dr. Juhn Han diagnosed Plaintiff with a compression radial nerve palsy. (Id. at 195.) The condition caused Plaintiff to miss about three weeks of work. (Id.

at 196.) Plaintiff next saw Dr. Eckman on November 13, 2001 for her wrist and hand ailments. (Id.) Dr. Eckman recorded Plaintiff’s complaints of pain in both wrists, numbness in certain digits, and a burning sensation in her wrists and hands. (Id.) Plaintiff reported to Dr. Eckman that she could type for ten minutes at a time and could write to pay her bills. (Id. at 197.) Plaintiff said she wore splints while driving and most of the time at work. (Id.) Plaintiff also said she was limited in her ability to vacuum, scrub floors, iron, mow the lawn, and fold clothes. (Id.) Dr. Eckman wrote that Plaintiff was taking propoxyphene for pain and trazedone for sleeplessness caused by discomfort in her hands. (Id.

at 105, 197.) Upon examination, Dr. Eckman noted that Plaintiff had a full range of motion in her wrists and hands with no inflammation. (Id. at 197.) Muscle testing on her wrist and hands was in the low-normal range. (Id.) Dr. Eckman concluded that Plaintiff had residual carpal tunnel syndrome with some nerve scarring, and wrist strain and tendinitis when aggravated by overuse. (Id. at 198.) Dr.

Eckman thought that Plaintiff should seek other employment, which could accommodate her restrictions, and noted that her restrictions continued to be the same as recorded on May 31, 2001.

(Id.) Dr. Eckman wrote a letter to the Office of Worker’s Compensation on November 17, 2001, in connection with Plaintiff’s worker’s compensation claim. (Id. at 283.) He noted that it was reasonable CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 6 of 23 to conclude that Plaintiff had reached maximum medical improvement. (Id. at 283-84.) He noted that Plaintiff could not tolerate repetitive use of her wrist and hands, depending on the activity. (Id. at 284.) He recommended that Plaintiff continue working part-time in the repackaging area of USPS and be permitted a fifteen minute break every hour. (Id.) On March 14, 2002, Plaintiff returned to Dr. Eckman to review her work restrictions. (Id. at 172.) Dr. Eckman remarked that Plaintiff was repairing damaged mail for forty-five minutes an hour, four hours a day, five days a week. (Id.) Dr. Eckman thought that Plaintiff could increase her hours with work that required less wrist and hand stress. (Id.) Dr. Eckman completed a Department of Labor form on the same day, on which he reiterated this information and also concluded that Plaintiff was limited to pushing and pulling twenty pounds and lifting ten pounds. (Id. at 174.) Plaintiff did not visit Dr. Eckman after March 14, 2002. (Id. at 178.) However, Plaintiff called Dr. Eckman on October 3, 2002, to report that she was working regularly at USPS but that her hands were bothering her again. (Id.) Dr. Eckman recommended that Plaintiff try outpatient hand therapy three times a week. (Id.) Plaintiff subsequently went to eleven therapy sessions. (Id. at 268.) On August 26, 2002, Dr. Clinton Moen conducted an IME of Plaintiff. (Id. at 360.) Dr.

Moen concluded that Plaintiff suffered from chronic tendinitis but that most of Plaintiff’s subjective complaints were not supported by medical data. (Id. at 363.) He recommended that Plaintiff be restricted in her work to lifting no more than ten pounds and to performing repetitive motions no more than four hours a day. (Id. at 364.) On February 27, 2004, Dr. Eckman wrote a letter to St. Mary’s/Duluth Clinic Health System.

(Id. at 181.) He stated that Plaintiff could do occasional typing and regular telephone answering, CASE 0:06-cv-03289-ADM-SRN Document 17 Filed 06/27/07 Page 7 of 23 message taking, and other light clerical duties. (Id.) He stressed that only heavy and repetitive activities would exacerbate her symptoms. (Id.) In May 2004, Dr. Franklin Johnson examined Plaintiff at the request of the Social Security Administration. (Id. at 310.) Dr. Johnson noted a normal range of motion in Plaintiff’s wrists, good grip strength, and only a minor limitation in dexterity. (Id.) Dr. Johnson thought Plaintiff’s reported symptoms of numbness and sensitivity were exaggerated when compared to the normal physiological course of carpal tunnel syndrome. (Id. at 311.) He conceded that her USPS job might irritate her symptoms but noted that more suitable options for employment existed. (Id.) Dr. Thomas Chisholm, a medical consultant, reviewed Plaintiff’s medical information on June 7, 2004, and concluded that she did not have a severe physical impairment. (Id. at 313.) Dr. Owen Nelson assessed Plaintiff’s mental condition on July 8, 2004, and concluded there was no medically determinable impairment. (Id. at 314.) Plaintiff visited the SuperiorHealth Medical Group clinic on May 3, 2005, and reported no new symptoms, just variable achiness in her hand and wrist. (Id. at 329.) Plaintiff’s doctor remarked that her symptoms were “fairly well controlled on Darvocet.” (Id.)

–  –  –



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