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RHODES v. BARNHART

April 19, 2004.

JULIE A. RHODES, Plaintiff,
v.
JO ANNE BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant



The opinion of the court was delivered by: GEORGE LINDBERG, Senior District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Julie A. Rhodes seeks judicial review of a final decision of defendant Commissioner of Social Security that denied her claim for Social Security disability benefits. Before the court are the parties' cross-motions for summary judgment. For the reasons stated below, plaintiff's motion is granted, and defendant's motion is denied.

I. Procedural History

  On April 3, 2001, plaintiff filed an application for Social Security disability benefits. The claim was denied both initially and on reconsideration. Plaintiff received a hearing before an Administrative Law Judge ("ALJ") on December 19, 2002. On January 31, 2003, the ALJ denied plaintiff's request for benefits. Plaintiff requested review by the Appeals Council, which was denied on April 24, 2003, leaving the ALJ's decision as the final decision of the Commissioner. On June 18, 2003, plaintiff filed this action.

 II. Factual Background

  Plaintiff was born on January 21, 1955, and was 47 years old at the time of the ALJ's decision. She attended high school through her sophomore year. Prior to October 1999, plaintiff worked ten to fifteen hours per week, approximately forty weeks per year, "merchandising," or moving products around in retail stores. In this job, plaintiff was required to lift as much as thirty to fifty pounds, depending on the type of merchandise she was moving. Frequently, the merchandise she was required to lift would weigh less than ten pounds. Plaintiff earned between $4,000 and $4,600 annually for performing this work.

  Prior to the merchandising job, plaintiff worked at a hardware and lumber store. In that job, plaintiff drove a forklift, and unloaded and loaded trucks. Plaintiff was required to lift 75 pounds at the hardware and lumber store. Plaintiff has also worked as an order picker, in which she was required to lift 25 to 50 pounds. Finally, plaintiff previously worked as an inventory clerk, which required only light exertion and minimal lifting.

  Plaintiff claims that she became disabled on October 20, 1999,*fn1 when a neighbor's dog knocked her down. As a result of this incident, plaintiff fractured her right lateral tibial plateau (knee). Plaintiff had surgery to repair the fracture on October 26, 1999. Plaintiff was on crutches after her surgery, and was allowed to bear weight on the leg with a brace starting January 3, 2000. Plaintiff testified that she had physical therapy two to three times a week, until April or May 2000. Plaintiff could walk with a cane as of January 31, 2000, but was experiencing some secondary strain and pain in her ankle. As of April 12, 2000, plaintiff had some occasional discomfort in her knee, but had full range of motion and was walking with a minimal limp. As of July 24, 2000, plaintiff was still experiencing occasional minimal discomfort in her knee, but was walking with no limp; her physician concluded that the fracture had healed, and discharged her.

  Plaintiff testified that approximately one to two months after her knee surgery, she began to have problems with her shoulders. Plaintiff testified that her shoulders hurt constantly, and that the pain increased over time. At the time, plaintiff assumed that the shoulder problem was caused by using crutches.

  Plaintiff attempted to return to part-time work in June or July 2000. She testified that at that time, her leg and shoulders still bothered her. Plaintiff believed that screws that had been placed in her leg during her knee surgery were rubbing when she moved. Plaintiff's employer accommodated her by having coworkers help her lift objects, and by allowing her to go home early some days.

  On October 11, 2000, plaintiff sought medical treatment for her shoulder pain. Plaintiff told her physician that her shoulder pain began when she started using crutches for her leg injury. Plaintiff initially was treated with injections of Lidocaine and DepoMedrol, which provided relief for only two to three weeks. Plaintiff testified that her physician also sent her to physical therapy for four or six weeks, which was not effective. Plaintiff stopped working in October or November 2000, around the time of the usual seasonal layoff in her job. At that time, she was unable to do much of her work due to shoulder pain.

  On December 11, 2000, plaintiff saw her physician with complaints of occasional discomfort in her knee. Plaintiff's treating physician theorized that this discomfort could be caused by the screws and other hardware that had been placed in her leg during surgery in October 1999.

  Plaintiff had surgery on her left shoulder on January 25, 2001, to repair a partial thickness tear of the rotator cuff with impingement. Plaintiff testified that she had physical therapy two to three times per week for a couple of months after that surgery. Plaintiff testified that she was unable to work after this surgery due to pain, and because she had physical therapy.

  Plaintiff had surgery on her right shoulder on April 19, 2001 to repair a rotator cuff tear. Plaintiff testified that she had physical therapy for three or four mouths after the surgery on her right shoulder. Plaintiff testified that she was unable to ...


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