Bauer v. Soc. Sec. Admin.

• Decision Date: 24 August 2010
• Docket Number: Civil No. 08-6088 (RHK/RLE)
• Citation: 734 F.Supp.2d 773
• Parties: Corliss Larsen BAUER, Plaintiff, v. SOCIAL SECURITY ADMINISTRATION, Defendant.
• Court: U.S. District Court — District of Minnesota

734 F.Supp.2d 773

Corliss Larsen BAUER, Plaintiff,

v.SOCIAL SECURITY ADMINISTRATION, Defendant.

Civil No. 08-6088 (RHK/RLE).

United States District Court,

D. Minnesota.

Aug. 24, 2010.

Corliss Larsen Bauer, Lino Lakes, MN, pro se.

Lonnie F. Bryan, United States Attorney's Office, Minneapolis, MN, for Defendant.

ORDER

RICHARD H. KYLE, District Judge.

Based upon the Report and Recommendation of United States Magistrate Judge Raymond L. Erickson, and no objections having been filed with respect thereto, IT IS ORDERED:

1. The Report and Recommendation (Doc. No. 17) is ADOPTED;

2. Plaintiff's Motion for Summary Judgment (Doc. No. 10) is DENIED; and

3. Defendant's Motion for Summary Judgment (Doc. No. 11) is GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION

RAYMOND L. ERICKSON, United States Chief Magistrate Judge.

I. Introduction

The Plaintiff commenced this action, pursuant to Section 405(g) of the Social Security Act, Title 42 U.S.C. § 405(g), seeking a judicial review of the Commissioner's final decision which denied her application for Disability Insurance Benefits ("DIB"). The matter is now before the Court upon the parties' cross-Motions for Summary Judgment. The Plaintiff has appeared pro se, and the Defendant has appeared by Lonnie F. Bryan, Assistant United States Attorney. For reasons which follow, we recommend that the Defendant's Motion for Summary Judgment be granted, and that the Plaintiff's Motion be denied.

II. Procedural Background

The Plaintiff protectively filed for Social Security Disability Benefits ("DIB") on September 30, 2004, and alleged an onset date of December 1, 2000, with a date last insured of December 31, 2000. [T. 74]. Her application was initially denied on January 12, 2005, and upon reconsideration on May 25, 2005. Id. The Plaintiff requested a Hearing, which was held before an Administrative Law Judge ("ALJ") on August 12, 2006, at which time, the Plaintiff appeared and testified, and was represented by legal counsel. Id.; [T. 448-75]. The Plaintiff was also represented by another, who did not appear at the Hearing, but who submitted additional documents thereafter. Id. William Rutenbeck ("Rutenbeck") appeared at the Hearing as Vocational Expert ("VE"). Id. After the supplemental documents were submitted, the ALJ held a supplementary Hearing, on September 26, 2006. [T. 440-47]. The Plaintiff appeared at the supplementary Hearing and was represented by legal counsel, but only the VE, who was Mitchell J. Norman ("Norman"), testified. Id. The ALJ issued her decision on January 10, 2007, and found that the Plaintiff was not disabled as of her date last insured-December 31, 2000. [T. 84].

The Plaintiff filed a request for review of the ALJ's decision, and submitted additional records for consideration by the AppealsCouncil, in addition to several letters. [T. 5, 409-439]. However, on August 27, 2008, the Appeals Council denied the request for further review. [T. 6-9]. As a consequence, the ALJ's determination became the final decision of the Commissioner. See, Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000); Grissom v. Barnhart, 416 F.3d 834, 836 (8th Cir.2005); Steahr v. Apfel, 151 F.3d 1124, 1125 (8th Cir.1998); Johnson v. Chater, 108 F.3d 942, 943-44 (8th Cir.1997); Title 20 C.F.R. § 404.981.

III. Administrative Record

A. Factual Background. The Plaintiff was forty-five (45) on the date last insured. [T. 83]. The Plaintiff completed college in 1977, [T. 146], and according to her reports to the Social Security Administration ("SSA"), her impairments began in January of 2000, and she stopped working on December 1, 2000. [T. 119, 141]. In her application for DIB, the Plaintiff alleged that she was unable to work due to her depression, and "considerable ADD," which limited her ability to concentrate. [T. 140-41]. In addition to those impairments, the ALJ found severe impairments of obesity, chronic sinusitis, and bilateral chondromalacia/patellofemoral syndrome. [T. 76].

1. Medical Records as to Physical Impairments.¹ On January 5, 1994, the Plaintiff was seen at the North Suburban Family Physicians Clinic ("North Suburban") with nasal congestion, and facial pain for the preceding ten (10) days. [T. 405]. The Plaintiff was assessed with sinusitis and a left ear canal lesion, and was prescribed Amoxicillin.² Id. On February 11, 1994, the Plaintiff was seen at the MidWest Ear, Nose, and Throat Clinic ("MidWest"), for choanal atresia, and reported constant pain in her left ear, and a recent bout of bad sinusitis. [T. 202, 323, 343]. Upon examination, the physician noted that the Plaintiff had difficulty breathing through her nose, and a significant septal deformity. Id. The Plaintiff and the physician discussed surgery for the septal deformity. Id. On March 4, 1994, MidWest canceled the surgery, because of congestion, and the Plaintiff was referred for RAST allergy testing. Id.

On March 14, 1994, the Plaintiff was seen at North Suburban for sinus symptoms which were not being fully resolved with antibiotics. [T. 404]. The physician observed that the Plaintiff's "TM" was mildly inflamed, and that the nasal mucosa on the left side was fairly boggy and inflamed, with a purulent discharge. Id. The physician assessed chronic and recurring sinusitis, and the Plaintiff was prescribed Augmentin,³ and Nasalide ⁴ nose spray. Id.

On March 23, 1994, the Plaintiff was seen at MidWest, where her RAST results returned negative for all antigens tested, and the Plaintiff was referred to Dr. Carley for further direction. [T. 201, 321, 342]. On March 29, 1994, the Plaintiff wasstill experiencing a marked amount of problems with her nose, and examination revealed deflection of the septum to the left. Id. A CT scan from March 30, 1994, revealed mild mucoperiosteal thickening; bilateral maxillary sinuses that were markedly hypoplastic, and showed small atretic appearing infundibula; a complex septal deviation to the left at one part, and to the right at another; and patent appearing sphenoethmoidal recesses and nasofrontal ducts. Id. On March 31, 1994, the physician assessed the Plaintiff with hypoplastic sinuses, with problems mostly occurring intranasally, and septal surgery was recommended. Id.

The Plaintiff not was seen again until November 17, 1994, when she reported good health, and decided to have the septal surgery, [T. 200, 322, 341], which she underwent in December of 1994. In a medical note from December 29, 1994, it was related that the Plaintiff was healing nicely. [T. 199, 320, 340]. However, a few months later, on March 27, 1995, the Plaintiff was seen at North Suburban for weakness, aches, and slight nasal congestion, [T. 402], and on July 10, 1995, the Plaintiff returned to MidWest with complaints of sinus infections, nasal infections, and excessive drainage. [T. 198, 319, 339]. Examination revealed "some swelling in the nose bilat[erally]" and drainage, and the physician prescribed Biaxin.⁵ Id.

A CT scan, from July 11, 1995, revealed an interval increase in the mucoperiosteal thickening in the left maxillary sinus, bilateral nasofrontal ducts, and bilateral sphenoethmoidal recesses; an interval decrease in mucoperiosteal thickening in the left maxillary sinus, with apparent widening of atretic infundibulum; the right maxillary sinus was improved in pneumatization; the septal deviation had decreased; and there was an appearance of interval onset of nasofrontal duct opacification. Id. The Plaintiff was seen again on August 3, 1995, when she reported that she was feeling much better, but the CT scan showed "some chronic ethmoid disease," and that she "bilaterally ha[d] hypoplastic maxillary sinuses," and the physician opined that the Plaintiff's problems were "probably [ ] due to vasomotor rhinitis that causes a secondary ethmoiditis." [T. 197, 318, 338]. The physician recommended bilateral endoscopic ethmoidectomies, id., but there are no records which document that the Plaintiff underwent that second recommended surgery.

The Plaintiff returned to North Suburban on March 8, 1996, with symptoms of a cold that had lasted three (3) days, with a minimal amount of sinus congestion, but clear drainage, and she related that she was concerned because she was going to take an airplane the next day, in order to go skiing. [T. 397]. The physician assessed viral "URI" with probable eustachian tube dysfunction, and recommended Afrin and Sudafed for the air travel, and for skiing. Id. A year later, the Plaintiff returned to North Suburban on March 21, 1997, with complaints of a sore throat, congestion, a runny nose, and weepiness, but she had nontender sinuses, [T. 391], and the physician recommended fluids, and alternating Tylenol and Advil. [T. 392].

Almost one (1) year later, on February 13, 1998, the Plaintiff was seen for a sinus infection by Dr. William G. Jones, [T. 191-92], and he observed a thick discharge and recommended acidophillus. [T. 192]. On February 16, 1999, Dr. Jones completed an employment health form, for the United States Postal Service, in which he stated that he had treated the Plaintiff for acute sinusitisin early 1999,⁶ and had also treated her for acute sinusitis in February of 1998, and possibly in November of 1998,⁷ from which she had recovered. [T. 193]. Those treatments are reflected in Dr. Jones's brief notations, which list the Plaintiff's complaints as nasal congestion and coughing, on February 13, 1998, November 12, 1998, November 23, 1998, and February 9, 1999. [T. 192]. In addition, Dr. Jones opined that the Plaintiff's acute sinusitis was "temporary," and that she was recovering with a good prognosis, and that she did not require any physical restrictions, in February of 1999. [T. 193].

Dr. Jones also completed a Patient History Sheet on January 16, 1998. [T. 194-196]. The history relates that the Plaintiff had previously undergone a tonsillectomy, a broken ankle, a caesarean section, and repair of a deviated septum, and reports...