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Hayden v. Astrue

December 3, 2008

MARK R. HAYDEN, PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



The opinion of the court was delivered by: Judge Marbley

Magistrate Judge Abel

ORDER

This matter is before the Court on Magistrate Judge Abel's August 6, 2008 Report and Recommendation that recommends remand to the Commissioner to clarify the record with respect to a June 5, 2002 EMG report and the significance of the possibility that the C6-7 fusion might not be 100% solid. No objections have been filed to the Report and Recommendation.

The Report and Recommendation recommended remand based on the following analysis:

The administrative law judge did not discuss Dr. Mullin's June 10, 2002 letter reviewing plaintiff's June 5, 2002 EMG result showing electrodiagnostic evidence of lower cervical radiculopathy below the fusion. (R. 435.) Nor does the administrative law judge note the absence of the EMG results in the record or discuss the basis for Dr. Snider's opinion that Hayden had cervical radiculopathy. The administrative law judge also stated that plaintiff's cervical fusion was solid despite Dr. Mullin's September 27, 2002 letter indicating that the results of the CT scan of his cervical spine suggested that the C6-7 fusion might not be 100% solid, which could possibly be causing him pain. (R. 23, 443.) Rather than discussing the significance of the June 5, 2002 EMG and the possibility that the fusion was not completely solid, the administrative law judge indicated that there was no EMG evidence suggesting radiculopathy and that the fusion was solid, despite evidence to the contrary. (Doc. 13, at p. 21.) The Court, having reviewed the record de novo, determines that the this case must be remanded to the Commissioner for the reasons identified by the Magistrate Judge.

Upon de novo review in accordance with the provisions of 28 U.S.C. §636(b)(1)(B), the Court ADOPTS the Report and Recommendation. This case is REMANDED to the Commissioner to clarify the record with respect to a June 5, 2002 EMG report and the significance of the possibility that the C6-7 fusion might not be 100% solid.

Algenon L. Marbley, Judge United States District Court

20081203

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