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Keller v. Colvin

United States District Court, N.D. Indiana, South Bend Division

September 30, 2014

Jaime M. Keller, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.



Plaintiff Jaime Keller seeks judicial review of the final decision of Defendant Carolyn W. Colvin, Acting Commissioner of Social Security, denying her applications for Disability Insurance Benefits and Period of Disability under the Social Security Act. Keller suffered a shoulder injury that by itself was not "disabling" as defined in the Social Security Act. She alleges that the combination of all of her physical and mental impairments should have led the ALJ to find her disabled. The Court does not find that Plaintiff must be entitled to disability benefits, but finds that the ALJ erred in evaluating the extent of Plaintiff's mental impairments as of her date last insured. This error cannot be called "harmless" and therefore requires remand to the Agency.

A. Procedural Background

Keller applied for disability benefits on March 22, 2010, alleging disability beginning on April 4, 2008. (R. 280.) Her application was denied initially on July 6, 2010, and again upon reconsideration on September 24, 2010. (R. 154-57; 163-66.) Her request for an administrative hearing was granted, and she attended two hearings before Administrative Law Judge ("ALJ") Dennis R. Kramer. (R. 36; 78.) The first hearing took place on June 22, 2011, and a supplemental hearing took place on January 11, 2012, after state agency consultants examined Keller in July 2011. (R. 36, 78.) ALJ Kramer issued an unfavorable decision, and Keller's request for Appeals Council review was denied, rendering ALJ Kramer's decision the final agency action. (R. 1-6, 16, 20-30.)

B. Factual Background

(1) Keller's Background and Testimony

Keller was born on May 27, 1977; she was thirty years old at the time of her alleged onset of disability, and thirty-four when the ALJ issued his decision. She has a high school education. (R. 83.) She stands five feet, seven inches tall, and at the first hearing she testified that she weighed 247 pounds but that her normal weight before her injury was 200 pounds. (R. 83.)

She testified that she worked previously as a hostess, waitress, head waitress, food supervisor, home health aide, and receptionist. (R. 86-92.) She stopped working in April 2008 when she injured her shoulder at work while setting down a heavy tray full of plates. (R. 85.)

At the first hearing, Keller testified primarily about her shoulder injury and resulting limitations. There were no questions from the ALJ or Keller's attorney about mental limitations, and there was no testimony from Keller regarding any mental impairment. Plaintiff was examined by a state agency psychological consultant the month after this hearing, and he diagnosed her with bi-polar disorder, obsessive-compulsive disorder ("OCD"), and posttraumatic stress disorder ("PTSD"), among other conditions.

At the second hearing, Plaintiff's attorney stated that she had evidence of mental limitations dating back to 2006, and that the inconsistent mental health treatment was due to her inability to pay. (R. 41.) Plaintiff testified that she did not get treatment for mental conditions because she had no insurance and she did not realize that there were serious problems. (R. 42.) She also testified that she had lost her job at a hotel for getting "into it" with the chef, had trouble interacting with people, and had trouble taking orders from supervisors. (R. 49.)

(2) Medical Evidence

On March 27, 2006, Keller saw Guy Merz, M.D., for right shoulder and hand pain, numbness in her left fingers, and tightness in her upper back. (R. 651.) She also suffered from back spasms that, along with the pain, caused her stress. (R. 615.)

In July 2006, Keller saw Sondra Wilkinson, M.C., at Empact for a behavioral health evaluation. (R. 612-34.) Keller indicated that she had experienced dizziness, headaches, and problems sleeping. (R. 616.) She reported bad mood swings and getting angry over little things, and that it had been an issue for about a year. (R. 618.) She attributed her condition to stress and family issues. (R. 618.) The mental status examination revealed Keller had a slightly irritable mood, blunted affect, realistic self-concept, normal thought process and content, average estimated intelligence, partial judgment and impulse control, and good insight. (R 623.) Wilkinson diagnosed Keller with a moderate episode of Major Depressive Disorder. (R. 624.) Psychosocial and environmental stressors included marital problems and limited access to health care. (R. 626.) Keller received a Global Assessment of Functioning ("GAF") Score of 51, indicating she had moderate symptoms of impaired functioning. (R. 626.)

On August 8, 2006, Keller had an initial counseling session with Joy Dugard at Empact. (R. 631.) She discussed physical and emotional trauma she had experienced in her life and stated that she had mood swings often and they affected her relationship with her fiance and with coworkers. (R. 632.) A week later, Keller had an EMDR session with Dugard and at the end of the session she had a much lower level of distress and disturbance related to her history of trauma and anger.[1] (R. 633.) In September 2006, Keller reported feeling stressed because she had lost her insurance coverage. (R. 633-34.) Then in October 2006, she informed Dugard that she planned on moving back in with her father, and declined further Empact services. (R. 634.) On November 29, 2006, Keller told an Empact employee that she was no longer covered by insurance and canceled an upcoming appointment. (R. 634, 627.)

On September 22, 2006, Michael Wilmink, M.D., performed an arthroscopy and subacromial decompression bursectomy on Keller's right shoulder. (R. 680.) On September 26, 2006, Kelli Coleman, a registered occupational therapist, prescribed Keller a home strengthening program because she lost insurance coverage and could not afford to pay for physical therapy. (R. 677-79.) On October 3, 2006, Dr. Wilmink cleared Keller to return to work by October 16, 2006. (R. 676.)

A year and a half later, on April 16, 2008, Keller saw Tom A. Karnezis, M.D., for an initial appointment. (R. 443.) She reported that she injured her left shoulder at work on April 4, and Dr. Karnezis noted that x-rays were within normal limits but that an MRI showed evidence of left shoulder impingement and a partially torn rotator cuff. (R. 443.) Keller saw Dr. Karnezis three more times before undergoing surgery on her left shoulder on May 27, 2008. (R. 442, 440, 436, 433-35.) Dr. Karnezis performed a left shoulder arthroscopic debridement with anterior and superior labral repair, and a partially torn rotator cuff repair. (R. 433-35.) The surgery provided some initial relief, but Keller continued to have pain in her scapulothoracic (shoulder blade) area and crepitus in her shoulder. (R. 428.)

An x-ray taken July 30, 2008, was within normal limits and the x-ray showed good subacromial decompression. (R. 426.) Keller went to physical therapy and had mixed results, but she continued to experience shoulder pain and crepitus. (R. 419-25.) On October 22, 2008, Dr. Karnezis opined that the crepitus could have resulted from a fiber wire stitch used in the May 27, 2008, surgery. (R. 417.)

On October 30, 2008, Keller had a second round of surgeries on her left shoulder. (R. 415-16.) The surgeries included: glenohumeral arthroscopic debridement with removal of Fiber Wires, and arthroscopic subacromial bursectomy and debridement with removal of multiple Fiber Wires. (R. 415.) Two weeks post-surgery, Dr. Karnezis reported that she had a full range of motion in her left shoulder, she was neurologically intact, but had scapulothoracic crepitus. (R. 413.) X-rays taken on December 10, 2008, were within normal limits, and Dr. Karnezis prescribed three-to-four physical therapy sessions every two weeks, with a one-pound weight restriction on the left arm to be increased over the next three weeks. (R. 411.)

Almost three years later, on July 20, 2011, John Heroldt, Ed.D, a state agency consultant, gave Keller a psychological examination. (R. 573.) Dr. Heroldt found that Keller had marked restrictions in her ability to interact appropriately with the public, with supervisors, and with coworkers, and a marked restriction in the ability to respond appropriately to usual work situations and changes in the routine work setting. (R. 574.) She reported several of the same traumatic experiences to Dr. Heroldt that she had discussed in 2006 at Empact. (R. 577.) Dr. Heroldt diagnosed Keller with bipolar I disorder; PTSD; OCD; borderline intellectual functioning; personality disorder; educational and occupational problems; and a GAF score of forty-eight, indicating impaired reality testing and major symptoms of impaired functioning in several areas. (R. 580.)

(3) Medical Expert's Testimony

James McKenna, M.D., testified as a medical expert at both ALJ hearings. (R. 38, 80.) Dr. McKenna specializes in pulmonary disease and internal medicine. (R. 238.) At the first hearing, Dr. McKenna stated that Keller's "extreme complaints" had no basis in the record and were "markedly out of proportion" with the objective medical evidence in the file. (R. 122.) Dr. McKenna opined that dropping a tray like Keller had on April 4, 2008, was a minor mechanism of injury, and that the resulting shoulder impingement should have been addressed by the first shoulder surgery. (R. 123.) When prompted by Keller to discuss evidence of her spinal tether, Dr. McKenna stated that the spinal tether was objective evidence supporting her complaints and would equal Listing 1.04. (R. 133.) However, Dr. McKenna qualified that the spinal tether did not equal the Listing until January 1, 2011, and that before that date Keller could perform light duty work. (R. 137.)

At the second hearing, Dr. McKenna stated that the spinal tether would equal Listing 1.04A, and that it was equivalent to the listing as early as March 30, 2010. (R. 53-55.) Dr. McKenna stated that the earlier evidence in the file did not show the same impairments that were present during 2010. (R. 55.) He provided a residual functional capacity for Plaintiff's physical limitations that included frequently lifting up to ten pounds; only occasionally lifting between eleven and twenty pounds; never lifting more than twenty pounds; sit, stand or walk for up to two hours at one time; sit, stand or walk for a total of six hours each in and eight hour day; no need for a cane; no reaching overhead with the left arm, but no limitation for the right arm; occasionally handle, and push and pull with the left hand; frequently finger and feel with the left hand; no climbing ladders, ropes, or scaffolds; no crawling; occasional other postural positions; frequently balance; only occasional exposure to heat, vibrating ...

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