MORAINE v. Social Sec. Admin., Civil No. 08-5982 (JRT/RLE).

• Citation: 695 F. Supp.2d 925
• Decision Date: 08 March 2010
• Docket Number: Civil No. 08-5982 (JRT/RLE).
• Parties: Beverly Arlene MORAINE, Plaintiff, v. SOCIAL SECURITY ADMINISTRATION, Defendant.
• Court: U.S. District Court — District of Minnesota

695 F. Supp.2d 925

Beverly Arlene MORAINE, Plaintiff, v. SOCIAL SECURITY ADMINISTRATION, Defendant.

Civil No. 08-5982 (JRT/RLE).

United States District Court, D. Minnesota.

March 8, 2010.

Beverly Arlene Moraine, St. Paul, MN, pro se.

Lonnie Bryan, Assistant United States Attorney, Office of the United States Attorney, Minneapolis, MN, for defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION

JOHN R. TUNHEIM, District Judge.

The above-entitled matter comes before the Court upon the Report and Recommendation of United States Magistrate Judge Raymond L. Erickson, dated February 16, 2010, and no objections having been filed to said Report and Recommendation.

Based upon the Report and Recommendation of the Magistrate Judge, and all of the files, records and proceedings herein,

IT IS HEREBY ORDERED that:

1. The Plaintiff's Motion for Summary Judgment Docket No. 24 is denied.

2. The Defendant's Motion for Summary Judgment Docket No. 29 is denied.

3. This matter is remanded to the Commissioner for further proceedings, in accordance with this Report, pursuant to Sentence 4 of Title 42 U.S.C. ? 405(g), and that Judgment should be entered accordingly.

4. Pursuant to the holding in Shalala v. Schaefer, 509 U.S. 292, 297, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), Judgment is entered accordingly.

REPORT AND RECOMMENDATION

RAYMOND L. ERICKSON, Chief U.S. Magistrate Judge.

I. Introduction

The Plaintiff commenced this action, pursuant to Section 205(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 on the parties' cross-Motions for Summary Judgment. The Plaintiff appears pro se, and the Defendant appears by Lonnie F. Bryan, Assistant United States Attorney. For reasons which follow, we recommend that the parties cross-Motions for Summary Judgment be denied, and that this matter be remanded to the Commissioner for further proceedings, not inconsistent with this Report.

II. Procedural History

The Plaintiff applied for DIB on March 26, 2007, at which time, she alleged that she had become disabled on March 6, 2007. T. 9, 128, 130. The Plaintiffs date, on which she was last insured for DIB, was September 30, 2008. T. 9, 131. Her claim was denied upon initial review, and upon reconsideration. T. 9, 45-54. The Plaintiff timely requested a Hearing before an Administrative Law Judge ("ALJ") and, on June 18, 2008, a Hearing was conducted, during which the Plaintiff appeared personally, and by Laura K. Ross, Esq. T. 9, 22-44. Thereafter, on July 19, 2008, the ALJ issued a decision, which denied the Plaintiffs claim for benefits. T. 6-17. The Plaintiff requested an Administrative Review before the Appeals Council, and on September 22, 2008, the Appeals Council declined to review the matter further. T. 1-5, 18-21. Thus, the ALJ's determination became the final decision of the Commissioner. See, 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).

Although not formally a part of the Record, it appears that the Plaintiff filed a second application for DIB, which was approved on the initial level of review. See, Plaintiff's Motion for Summary Judgment, Docket No. 24, at p. 3 of 3. The Commissioner advises that the official records reflect that the Plaintiff filed a second application for DIB on November 13, 2008, which was granted at the initial level of administrative review, based upon a finding that the Plaintiff became disabled on July 18, 2008, which is the date that the Plaintiff identified as the alleged onset date in her application, and which is one (1) day before the date of the ALJ's Decision in this case. See, Defendant's Memorandum in Support of Motion for Summary Judgment, ("Defendant's Memorandum"), Docket No. 30, at p. 23 of 24. We make note of this procedural development only to be satisfied that we have continued jurisdiction over the subject matter of this action and, concluding that a period of disability remains in dispute, we are satisfied that we continue to be presented with an actual "case or controversy." See, e.g., Defenders of Wildlife, Friends of Animals and Their Environment v. Hodel, 851 F.2d 1035, 1038 (8th Cir.1988) ("Article III of the Constitution limits the power of the federal courts to actual `cases' and `controversies.'"), citing United States Constitution, Article III, Section 2; see also, McClain v. American Economy Ins. Co., 424 F.3d 728, 731 (8th Cir.2005), quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ("To satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.").

III. Administrative Record

A. Factual Background. The Plaintiff was fifty (50) years old on the alleged onset date. T. 15. The Plaintiff graduated from high school, had two (2) years of post-secondary education, and has past work experience as an accounting clerk and personnel recruiter. Id. As related by the Plaintiff, she stopped working on or about March 6, 2007, due to her disability.

1. Medical Records. On April 3, 2006, the Plaintiff was seen at the Apple Valley Medical Center ("AVMC"), for complaints of headaches and a sore throat. T. 267. She was tested for Strep throat, which came back negative. T. 281. Shortly thereafter, on April 21, 2006, the Plaintiff presented at AVMC with complaints of a sore throat. T. 266.

On May 24, 2006, the Plaintiff saw Dr. Reetu Syal for hot flashes, fatigue, and symptoms of menopause. T. 297. Dr. Syal noted that the Plaintiff had underwent a vaginal hysterectomy one (1) year earlier, that the Plaintiff was taking Lexapro,¹ and that she had a history of gestational diabetes. Id. The Plaintiff advised that she wished to proceed with hormone replacement therapy to treat her menopausal symptoms, and Dr. Syal prescribed Premarin at that time.²Id. Dr. Syal also ordered hemoglobin and thyroid tests, so as to rule out other possible sources of the Plaintiffs fatigue. Id.

The Plaintiff was seen by Dr. Ingrid Wilbrand-Conley on August 22, 2006, for symptoms of menopause and significant hot flashes, which had improved slightly since she started taking Premarin, but she reported that she was experiencing nausea during hot flashes. T. 296. Dr. Wilbrand-Conley observed that the Plaintiff was well-developed, well-nourished, and in no acute distress. Id. The Plaintiff further reported that she was experiencing a lot of stress in her life, which had contributed to a slow increase in her weight over the last few years. Id. Dr. Wilbrand-Conley ordered a TSH cascade, and hemoglobin and glucose tests, and advised the Plaintiff to contact her primary care physician if her stress increased. Id. She was also prescribed Climara.³ Id.

On September 29, 2006, the Plaintiff saw Dr. Wilbrand-Conley for her annual examination, at which time, the Plaintiff reported that her stress level continued to increase, that she had "a lot of things going on in her life," and that the Lexapro was helping, but it was not completely addressing her stress level. T. 294. The Plaintiff reported several bouts of abdominal pain, which was associated with diarrhea, over the last couple of months which, at times, required up to seven (7) trips to the bathroom. Id. Dr. Wilbrand-Conley believed that the Plaintiff might have irritable bowel syndrome ("IBS"), and recommended that she set up a consultation with a gastroenterologist for a colonoscopy, so as to evaluate the Plaintiff for the existence of IBS. Id. Dr. Wilbrand-Conley also recommended that the Plaintiff quit smoking and decrease her use of caffeine. Id.

Dr. Patrick M. O'Reilly saw the Plaintiff on October 5, 2006, following a referral from Dr. Wilbrand-Conley for diarrhea and abdominal pain. T. 308. The Plaintiff told Dr. O'Reilly that, on July 2, 2006, her mentally ill sister came to her house and threatened to kill her. Id. The Plaintiffs sister remained at the house for about forty-five (45) minutes and, upon leaving, she drove into a police car. Id. The Plaintiff reported that, ever since that day, she has had abdominal pain and diarrhea, typically seven (7) or eight (8) times per day. Id. The Plaintiff described cramping pain in the lower abdomen, intermittent sharp left lower quadrant pain, gas and bloating, incomplete evacuation, and relief from the abdominal pain following a bowel movement. Id. The Plaintiff further reported that the intake of any food or drink resulted in prompt diarrhea. Id. Other symptoms included increased weakness and dizziness, increased difficulty sleeping, and nightmares. Id.

The Plaintiff was not in acute distress, and a physical examination was normal, with Dr. O'Reilly noting that her abdomen was soft, nontender, and nondistended, and that her bowel sounded normal. Id. Dr. O'Reilly observed that the Plaintiff had not lost any weight and had, in fact, gained five (5) to six (6) pounds. Id. He believed that the Plaintiff may have post traumatic stress disorder ("PTSD"), as a result of the incident with her sister. Id. Dr. O'Reilly further observed that the Plaintiff was exhibiting symptoms of irritable bowel syndrome, and opined that she may have underlying etiologies, such as colitis or infection. Id. He ordered stool cultures and laboratory work, and concluded that, if the results of those tests turned out to be unremarkable, then a colonoscopy would be ordered. T. 308-309. On October 12, 2006, the Plaintiff presented...