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Keyser v. Colvin

United States District Court, Eighth Circuit

May 31, 2013

DIANE E. KEYSER, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


LEONARD T. STRAND, Magistrate Judge.


Plaintiff Diane Keyser seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying her application for disability insurance benefits ("DIB") pursuant to Title II of the Social Security Act, 42 U.S.C. § 405(g). Keyser contends the administrative record ("AR") does not contain substantial evidence to support the Commissioner's decision that she is not disabled. For the reasons that follow, I recommend that the Commissioner's decision be reversed and remanded for further proceedings.


Keyser was born in 1955 and completed high school. AR 37-38. She previously worked as a general clerk and a teacher aide. AR 313. Keyser protectively filed for DIB on September 21, 2009, alleging disability beginning on July 31, 1999, due to bipolar disorder, borderline personality and irritable bowel syndrome. AR 195-200. Her claims were denied initially and on reconsideration. AR 60-63, 65-68. Keyser requested a hearing before an Administrative Law Judge ("ALJ"). AR 69. On September 20, 2011, ALJ Thomas Donahue held a hearing via video conference during which Keyser and a vocational expert ("VE") testified. AR 34-53.

On November 9, 2011, the ALJ issued a decision finding Keyser not disabled since July 31, 1999. AR 16-28. Keyser sought review of this decision by the Appeals Council and submitted additional evidence. AR 4, 11. The Appeals Council denied her request for review on June 8, 2012. AR 1-3. The ALJ's decision thus became the final decision of the Commissioner. 20 C.F.R. § 404.981.

On July 18, 2012, Keyser filed a complaint in this court seeking review of the ALJ's decision. This matter was referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for the filing of a report and recommended disposition of the case. The parties have briefed the issues, and the matter is now fully submitted.

Summary of Evidence

I have reviewed the entire administrative record and provide the following summary of the evidence relevant to Keyser's claim.

A. Medical Evidence

Keyser has been diagnosed with the following physical impairments: mild bilateral carpal tunnel syndrome, plantar fasciitis, obstructive sleep apnea, degenerative joint disease of the knees, left trochanteric bursitis, irritable bowel syndrome and moderate obesity. AR 324, 361, 366, 374, 386, 391, 594-95. Her mental impairments include depression and borderline personality disorder. AR 455-57.

Keyser saw Julie Schneider, ARNP, in November 2007 for depression and borderline personality disorder. AR 401-04. She explained that she had been hospitalized for suicide attempts three times in the past with the most recent in 2002. She had been treated for depression for the past 15 years. Id. Keyser said her mood was usually okay as long as she was compliant with her medications. She was working part-time at the school as a substitute paraeducator. Id. Schneider continued Keyser's current medications.

During her treatment with Schneider until February 2009, Keyser reported symptoms of insomnia, indicating she slept more often during the day and had decreased energy. AR 406. She continued working at the school but took a brief hiatus after she was turned down for a full-time position. AR 406. She also worked part-time at an animal shelter and took online classes to become a paralegal. AR 407-14, 525-54. Keyser's Global Assessment of Functioning ("GAF")[1] scores ranged from 50-55.

Keyser also received treatment from Berryhill Center for Mental Health ("Berryhill") off and on for the past 10 to 15 years. AR 449-51. In January 2009, she indicated that she had difficulty holding jobs in the past but felt most of the problem was due to her physical condition. AR 454-54. She believed her memory had deteriorated over the past five years as a result of her Ambien medication, but also indicated it had not improved when she stopped taking it. Id. Her GAF scores remained the same.

Keyser often admitted she was not compliant with her medication. AR 445-48, 619, 631, 638. In some instances, she stopped taking her medications because she noticed side effects such as weight gain or numbness even though she acknowledged it was helpful for mood stabilization. AR 497, 498, 520, 640. On one occasion she complained it was too exhausting for her to take her medication and another time she began taking a higher dose because cutting the pills was too difficult and she felt the higher dose was better. AR 448, 631. She also indicated that she felt better when she was compliant with her medication. AR 437, 445-46, 498, 619.

In March 2009, Keyser was laid off at the animal shelter and was working more at the school. AR 443. During this time she reported feeling better and being more motivated and better able to concentrate. AR 442. She was put on a "call-in basis" for treatment in April 2009 because she had difficulty keeping scheduled appointments. AR 439. On September 21, 2009, Patricia Hull, LISW, noted that Keyser had applied for disability but was working part-time at the school and still looking for full-time work. AR 430. On October 5, 2009, James Burr, MS, reported that Keyser said she mostly stayed around the house and did not do much. AR 429. She was still working part-time at the school, but he did not believe she was highly motivated to find a full-time job. Id.

In January 2010, Keyser said she was no longer working but was looking for work. AR 496. In April, she indicated she found part-time work but was "feeling somewhat caught" because the employer wanted to know if she could work while applying for disability. AR 639. She asked Burr to write a letter to the employer indicating she was able to work. Id. In August, she indicated she had turned down the job and decided to pursue her disability claim. AR 629.

In September 2010, Burr indicated one of his biggest concerns with Keyser was her inability to be consistent in coming in for appointments and her inability to confront unpleasant things and take care of them. AR 626. He noted the next month that she struggled with anxiety and thought this could be affecting her memory at times. AR 624.

Joan Kitten, ARNP, completed a mental residual functional capacity ("RFC") assessment on February 22, 2012, at the request of Keyser's attorney. AR 718-22. She identified several signs and symptoms associated with Keyser's mental impairments. She also found Keyser was unable to meet competitive standards in tasks associated with semi-skilled work such as understanding and remembering detailed instructions, setting realistic goals or making plans independently of others and dealing with the stress of semiskilled and skilled work. Id. Kitten noted Keyser was seriously limited, but not precluded in her ability to carry out detailed instructions, interact appropriately with the general public, travel in an unfamiliar place and use public transportation. Id. She anticipated that Keyser's impairments or treatment would cause her to be absent from work more than four days per month. Id.

As for Keyser's physical impairments, she had lap band surgery in June 2011. AR 601-02. She felt that obesity contributed somewhat to her depression and depression contributed to her lack of exercise to an extent. AR 363-64. She also frequently complained of musculoskeletal pain in her knees and low back, which appeared to be worsened by her being overweight. Id.

Keyser also sought treatment for her irritable bowel syndrome ("IBS"), knee pain and hip pain. AR 556, 601-02. She was instructed to take MiraLax for IBS. AR 601-02. She had knee surgery in 2001 to repair a right knee medial meniscus tear. AR 556. She continued to experience periodic pain and was told to take over-the-counter anti-inflammatory medication. Id. Her hip pain was treated with steroid injections as needed. Id.

B. State Agency Consultants

Jennifer Ryan, Ph.D., performed a mental RFC assessment and psychiatric review technique on November 25, 2009. AR 473-90. In her mental RFC assessment, she found that Keyser was moderately limited in her ability to carry out detailed instructions, interact appropriately with the general public, accept instructions and respond appropriately to criticism from supervisors, get along with coworkers or peers without distracting them or exhibiting behavioral extremes and respond appropriately to changes in the work setting. AR 474-74. In all other areas she was not significantly limited.

In the narrative portion of her assessment, Dr. Ryan found the evidence was insufficient to evaluate the time period between Keyser's alleged onset date of July 31, 1999, and September 1, 2005. AR 475. She noted that the medical evidence indicated Keyser's condition was stable and she had been doing reasonably well until April 17, 2006, when Keyser reported marital issues and situational stressors. Id. Her symptoms indicated moderate severity. She also noted there was a gap in the medical evidence from September 1, 2006, until January 1, 2009, although Keyser continued her psychotropic medications during this time. Id. She noted that Keyser's impairments did not meet or equal a listing, but were severe. Based on the evidence in the record, Dr. Ryan found there were some limitations with Keyser's ability to carry out detailed instructions. AR 476. She also found the evidence supported limitations in the area of social functioning, but Keyser was able to engage in brief appropriate interaction with others. She found Keyser's statements to be generally credible. Id. Dr. Ryan concluded that Keyser could be expected to follow simple to moderately complex instructions and perform work tasks consistent with this ability. In addition, she thought she would function best in environments with limited interpersonal demands. Id.

In her psychiatric review technique, Dr. Ryan found Keyser had mild limitation in her activities of daily living and moderate limitations in maintaining social functioning and concentration, persistence, or pace. She had no episodes of decompensation. AR 487.

Dr. Ryan performed a case analysis on February 16, 2010, when new evidence from Berryhill was added to the record. AR 505. Dr. Ryan found these medical records indicated relative stability of Keyser's mood and no suicidal ideation. Keyser had also expressed difficulty with online classes during this time. She found that these records were consistent with the rest of the medical evidence and did not alter her initial assessment. Id.

Dee Wright, Ph.D., reviewed the file on reconsideration on May 7, 2010. AR 529. On reconsideration, Keyser alleged her depression had not improved with medication, she was having difficulties with her concentration and memory and she alleged additional problems with her IBS. She found that the updated treatment information did not indicate evidence of functional deterioration. Id. Keyser continued to have moderate cognitive and social limitations consistent with Dr. Ryan's review. She reaffirmed Dr. Ryan's assessment as written. Id.

Donald Shumate, D.O., performed a case analysis for Keyser's alleged physical impairments on February 16, 2010. AR 506. He noted the record was insufficient prior to February 2006 for any physical impairment. Id. Dr. Shumate reviewed her function report and the third party function report and noted that Keyser did little at home. She claimed she could not lift much weight, but did not provide a specific reason. She claimed to have trouble walking due to bad feet and bad hips, but she had not sought ongoing treatment. Id. She also claimed to have stool incontinence, but she did not indicate her stool frequency.

Dr. Shumate found that Keyser had medically diagnosed impairments of IBS, mild bilateral carpal tunnel syndrome, left trochanteric bursitis, possible osteoarthritis of the knees and obstructive sleep apnea. Id. He noted that she was placed on Pamelor and Metamucil for stool incontinence in August 2009 and at her last visit this was improved. Id. He found her IBS to be non-severe. After Keyser had an EMG in April 2008 that revealed mild bilateral carpal tunnel syndrome, Dr. Shumate commented the record contained no additional complaints or treatment. Id. He also noted that her plantar fasciitis was deemed resolved in October 2008. He did not believe a recent avulsion fracture of her right tibia in October 2009 would be expected to result in any residual impairment. He concluded that the medial evidence did not support any severe physical impairments that would preclude work-related activity. Id.

C. Functional Capacity Evaluation

Mark Blankespoor, PT/DPT, performed a functional capacity evaluation at the request of Keyser's attorney on January 26, 2012. AR 710. In his summary, he noted Keyser "does not display the capacity to perform any tasks or activities on a frequent or continuous basis." AR 711. He found that her current capabilities placed her in the sedentary category meaning she was able to lift up to 15 pounds on a rare basis and up to five pounds on an occasional basis. AR 711. He also found that she would have significant difficulty performing work tasks on a full-time basis as she would not be able to engage in lifting, carrying, pushing, pulling, gripping, pinching, sitting, standing, walking, dexterity or positional tasks on a continuous daily basis. Id.

D. Function Reports

Keyser completed function reports on April 11, 2009, and October 27, 2009. AR 165-72, 222-30. Her husband, Randy Keyser, also completed function reports on October 25, 2009 and April 12, 2010. AR 212-19, 281-88. In her reports, Keyser said she spent most of her day in bed watching television. AR 169, 222. She would eat cold cereal and bathe once a week or when she had a doctor appointment. AR 167, 223-24. Her impairments affected her ability to lift, squat, bend, stand, walk, kneel and climb stairs. She also had difficulties with seeing, memory, completing tasks, concentration, following instructions, using her hands and getting along with others. AR 227. She thought she could walk 50 feet before needing to stop and rest for five to ten minutes. Id. She also explained that if she were to work she would not be able to eat due to fears of stomach cramps and fecal incontinence. AR 230. She stated her uncontrollable bowels would require her to change clothes and use the restroom several times a day, which would take her away from the job for long periods of time. Id.

The third party function reports provided by her husband reflect many of the same alleged limitations. He noted that she slept and watched television during the day. AR 281. He would cook and she would only make cold cereal or toast. AR 283. He also explained that she could not be around people if she was not on her medication. AR 286. He thought she could pay attention for minutes at a time and could not walk far due to her bad hips. Id. He ...

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