Fishbaugher v. Astrue

878 F. Supp. 2d 939, 2012 WL 2393776, 2012 U.S. Dist. LEXIS 91412
CourtDistrict Court, D. Minnesota
DecidedJune 25, 2012
DocketCiv. No. 11-1252 (MJD/JJK)
StatusPublished

This text of 878 F. Supp. 2d 939 (Fishbaugher v. Astrue) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fishbaugher v. Astrue, 878 F. Supp. 2d 939, 2012 WL 2393776, 2012 U.S. Dist. LEXIS 91412 (mnd 2012).

Opinion

ORDER

MICHAEL J. DAVIS, Chief Judge.

The above matter comes before the Court upon the Report and Recommendation of United States Magistrate Judge Jeffrey J. Keyes dated June 11, 2012. No objections have been filed to that Report and Recommendation in the time period permitted. Based upon the Report and Recommendation of the Magistrate- Judge, upon all of the files, records, and proceedings herein, the Court now makes and enters the following Order.

IT IS HEREBY ORDERED that:

1. Plaintiffs Motion for Summary Judgment (Doc. No. 8), is GRANTED, and the case is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for reversal and award of benefits; and

2. Defendant’s Motion to Remand (Doc. No. 14), is DENIED.

LET JUDGMENT BE ENTERED

REPORT AND RECOMMENDATION

JEFFREY J. KEYES, United States Magistrate Judge.

Pursuant to 42 U.S.C. § 405(g), Plaintiff Sheri Fishbaugher seeks judicial review of the final decision of the Commissioner of Social Security (“the Commissioner”), who denied Plaintiffs application for disability insurance benefits. Plaintiff filed a Motion for Summary Judgment and the Commissioner filed a Motion to Remand. (Doc. Nos. 8, 14.). This matter has been referred to the undersigned for a Report and Recommendation, pursuant to 28 U.S.C. § 636, Fed. R. of Civ, P. 72, and D. Minn. Loe. R. 72.1. For the reasons stated below, this Court recommends granting Plaintiffs Motion for Summary Judgment and denying Defendant’s Motion to Remand.

BACKGROUND

I. Procedural History

Plaintiff protectively filed an application for disability insurance benefits [942]*942(“DIB”) on March 20, 2007, alleging a disability onset date of December 30, 2003. (Tr. 10, 129-33.)1 Her date last insured is December 31, 2006.2 (See, e.g., Tr. 10, 134.) The application was denied initially and on reconsideration. (Tr. 55-59, 63-65.) Plaintiff timely requested a hearing, which was held before an Administrative Law Judge (“ALJ”) on February 10, 2010. (Tr. 23-45, 66-67.) On April 8, 2010, the ALJ issued an unfavorable decision. (Tr. 7-22.) Plaintiff sought review of the ALJ’s decision, but the Appeals Council denied the request for review on April 12, 2011. (Tr. 1-4.) The denial of review made the ALJ’s decision the final decision of the Commissioner. See 42 U.S.C. § 405(g); Clay v. Barnhart, 417 F.3d 922, 928 (8th Cir.2005); Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir.1992).

On May 13, 2011, Plaintiff filed the instant action with this Court seeking judicial review pursuant to 42 U.S.C. § 405(g). (Doc. No. 1.) Thereafter, Plaintiff filed a motion for summary judgment. See D. Minn. Loe. R. 7.2. In response, the Commissioner filed a motion to remand for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Plaintiff opposes remand for further proceedings and seeks reversal for an award of benefits.

II. Statement of Facts

The following detailed medical history concerning Plaintiffs fibromyalgia and other relevant medical problems is drawn from the medical records that are part of the record in this case.

Dr. Dennis Colby evaluated Plaintiff for kidney infection at Cresco Medical Clinic on January 19, 2004. (Tr. 498.) An x-ray of her lumbar spine showed early degenerative changes. (Tr. 498, 547.) The next week, Plaintiff was evaluated for bladder infection, headache, and back pain. (Tr. 497.) Plaintiffs bladder infection was treated, and Dr. Colby recommended Aleve for headaches. (Id.)

On February 4, 2004, Plaintiff returned to Dr. Colby for treatment of mild back pain. (Tr. 496.) She also had some abdominal pain and blood in the urine. (Id.) She was referred to Dr. Ajay Nehra at the Mayo Clinic Urology Department for evaluation of her recent episodes of hematuria and bilateral flank pain. (Tr. 449.) Plaintiff had a long history of bilateral vesicoureteral reflux,3 and later, significant flank pain with off and on episodes of pyelonephritis.4 (Id.) Dr. Nehra ordered a CT urogram, cystoscopy, and lab tests. (Id.)

Dr. Nehra referred Plaintiff to Dr. Shabana Pasha for a multi-system evaluation, which was performed on February 12, 2004. (Tr. 446-48.) At that time, Plaintiff reported that she had had low back pain for six months, and intense pain that increased when Plaintiff was fatigued. (Tr. 446.) Tylenol only mildly reduced her pain. (Id.) Also, based on an outside x-ray report, Plaintiff stated she was concerned about spinal infection. (Id.) She reported an onset of constipation for one month, which did not improve with Miralax, and she was taking Percocet recently, which [943]*943might have been contributing to her constipation. (Id.) Plaintiff also reported constant lower abdominal discomfort. (Id.) Plaintiffs physical examination was normal, with the exceptions of mild tenderness of the abdomen and tenderness over the lumbosacral paraspinal region. (Tr. 447.) She was, referred to Physical Medicine & Rehabilitation for her back pain. (Id.)

Plaintiff had an MRI of her lumbar spine that same day. (Tr. 428.) The MRI showed degenerative disk disease with loss of space height and bulging of the annulus fibrosus at the L2 interspace, and mild associated degenerative changes at the adjacent L2 and L3 endplates. (Id.) There were also changes of spondylosis5 at the L3 and L4 interspaces, with bulging of the annulus fibrosus and facet joint hypertrophy. (Id.) The MRI also showed small presumed cysts on the kidneys. (Id.) Testing confirmed the simple cysts on the kidneys, a tiny indeterminate nodule on the right lung base, and two tiny cysts on the liver. (Id.)

Also on February 12, 2004, Plaintiff saw Dr. Andrea Boon in the Physical Medicine and Rehabilitation Department at Mayo Clinic. (Tr. 455-57.) Dr. Boon reviewed Plaintiffs daily activities and her symptoms. (Tr. 455.) Plaintiff lived on a farm with her husband, where they managed a large hog and cattle herd. (Id.) Their four-year-old and fourteen-year-old children lived with them. (Id.) Plaintiff also had an 18-year-old son who lived in Los Angeles. (Id.)

Plaintiff reported that she was in a car accident at approximately age eighteen, with back pain lasting a year. (Id.) Her back pain significantly increased after her second pregnancy. (Id.) Her back pain was manageable, until the last six months. (Id.) The pain started in the low back and spread to the lower thoracic spine. (Id.)

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Bluebook (online)
878 F. Supp. 2d 939, 2012 WL 2393776, 2012 U.S. Dist. LEXIS 91412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fishbaugher-v-astrue-mnd-2012.