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Keyser v. Colvin

United States District Court, D. Oregon

March 2, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


STACIE F. BECKERMAN, Magistrate Judge.

Pamela Keyser ("Keyser") appeals the Commissioner of the Social Security Administration's ("Commissioner" or "SSA") denial of her application for social security disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 405(g), and, for the reasons explained below, the Court recommends that the Commissioner's decision be reversed and remanded for an immediate award of benefits.


Keyser began working in retail as a cashier-checker in the early 1980s. Keyser worked in that same capacity in Fred Meyer's home fashion department from November 20, 1997, through October 31, 2005. Keyser now asserts that she is disabled based on combined impairments, including bullous emphysema, bipolar disorder, depression, and anxiety. Keyser alleges that her disability began on October 31, 2005, when her right lung collapsed and had to be surgically repaired. Keyser spent eight days in the hospital following her surgery. The treatment notes prepared by Keyser's attending physician at that time indicated that the recurrence rate of a collapsed lung was as high as thirty percent or above. The attending physician spoke with Keyser at the time of her November 8, 2005, discharge from the hospital. He explained the risk of recurrence, and warned Keyser that another collapsed lung could "be potentially life-threatening." (Tr. 203.)

On November 22, 2005, Keyser filed an application for disability insurance benefits. Roughly one month later, on December 28, 2005, Keyser completed a Claimant Fatigue Questionnaire. Keyser stated that she: (1) began experiencing fatigue after her right lung collapsed; (2) requires two or three one-hour naps per day; (3) requires rest between activities due to emphysema and her recent lung injury; (4) shops on a monthly basis and cleans, cooks, and does laundry on a daily basis; (5) does not drive or socialize with friends; (6) needs rest after walking, sitting, or standing for less than an hour; (7) can bend and lift ten pounds occasionally and reach forward or upward rarely; and (8) experiences unspecified physical side effects from antidepressants.

That same day, December 28, 2005, Keyser completed an Adult Function Report.[1] Keyser described her typical day as consisting of waking up and taking her medications, having coffee and breakfast, lying down in bed, and performing light housework for short periods of time. Keyser reported that depression and emphysema disrupt her everyday life (e.g., her ability to lift, bend, stand, reach, walk, sit, talk, concentrate, and get along with others), that her hobbies include reading, watching television, and listening to music, that she takes care of her husband, two sons (ages seventeen and twenty), and pets, that she has no difficulty in terms of personal care, and that she can handle money, pay bills, count change, handle a savings account, and use a checkbook.

On January 18, 2006, Keyser visited her primary care provider, Dr. Stephen Knapp ("Dr. Knapp"), regarding her emphysema, depression, and generalized anxiety disorder. Keyser reported that she was feeling better despite continued mood swings. Dr. Knapp advised Keyser that she could not return to work at Fred Meyer for another two months, and that there was a possibility she would never be able to return to work. Dr. Knapp also noted during a prior consultation that Keyser was in the process of applying for social security disability benefits, and that he felt Keyser "certainly should qualify for" such benefits. (Tr. 224.)

The next day, January 19, 2006, Keyser presented for a pain management consultation with Dr. Nancy Maloney ("Dr. Maloney"). Keyser described an achy chest which she rated as a seven on a ten-point scale. Keyser reported that the pain caused her to avoid sleeping on her right side, have a reduced range of motion in her trunk, avoid lifting heavy objects, experience numbness along her right anterolateral chest wall, and avoid resistive pulling activities. Dr. Maloney noted that Keyser was scheduled to begin chronic obstructive pulmonary disease rehabilitation by early February 2006.

On February 24, 2006, Dr. Frank Lahman ("Dr. Lahman"), a non-examining state agency psychologist, completed a Psychiatric Review Technique Form ("PRTF"), wherein he evaluated Keyser's impairments under listings 12.04 (affective disorders) and 12.06 (anxiety-related disorders).[2] Dr. Lahman concluded that the limitations imposed by Keyser's impairments failed to satisfy listings 12.04 or 12.06. Dr. Lahman noted that Keyser had not experienced any episodes of decompensation of an extended duration, and that she was mildly limited in terms of activities of daily living, social functioning, and concentration, persistence, or pace.

On February 27, 2006, Dr. Martin Lahr ("Dr. Lahr"), a non-examining state agency physician, completed a Physical Residual Functional Capacity Assessment ("PRFCA"). Dr. Lahr concluded that Keyser: (1) could lift and/or carry twenty pounds occasionally and ten pounds frequently; (2) could stand, walk, and sit about six hours in an eight-hour workday; (3) could push and/or pull without limitation; and (4) had no postural, manipulative, visual, communicative, or environmental limitations.

On April 6, 2006, Dr. Neal Berner ("Dr. Berner"), a non-examining state agency physician, completed a second PRFCA. Dr. Berner's PRFCA was identical to Dr. Lahr's in all respects with one exception. In terms of environmental limitations, Dr. Berner noted that Keyser should avoid even moderate exposure to "[f]umes, odors, dusts, gases, poor ventilation, etc." (Tr. 296.)

On May 18, 2006, Dr. Marc Jacobs ("Dr. Jacobs"), Keyser's pulmonologist, drafted a letter to Keyser's counsel, which stated the following:

Pamela Keyser is a patient of mine. She has underlying severe emphysema with significant exercise limitation. She has suffered from a spontaneous collapsed lung and has required surgery for repair. At this time, I do not believe she is going to be able to work with any kind of strenuous activity. She has a FEV1 in August 2005 of 70% of predicted.

(Tr. 305.)[3]

On June 2, 2006, Dr. Knapp (Keyser's primary care provider) also drafted a letter on Keyser's behalf, which stated:

Pam Kayser [sic] has been a patient of mine for some time. In the past year, she has been diagnosed with severe emphysema. Even though she is fairly young for this condition, she is clearly unable to perform any work because of it. She has already been hospitalized once, at which time she had to have a surgical procedure done for repair of an area of her lung that ruptured, which was dilated from having abnormal lung tissue; this is called a bleb. It took her a while to recover from that. While she continued to recover, she has been discovered to have several other spots that could do the same thing and require her to have other treatment.
The patient has also been seeing a pulmonologist, Dr. Marc Jacobs, who should perhaps also be contacted regarding this matter.
If you should have any other questions or concerns regarding this matter, please do not hesitate to contact me.

(Tr. 306.)

Dr. Knapp drafted a second letter on Keyser's behalf on November 15, 2006. That letter indicated that Keyser is suffering from severe depression, a generalized anxiety disorder, and chronic obstructive pulmonary disease or emphysema. (Tr. 307.) Dr. Knapp stated that Keyser "is basically unable to work due to the combination of these impairments." (Tr. 307.)

On December 27, 2006, the day after completing a pulmonary function test, Dr. Jacobs drafted a second letter on Keyser's behalf. In his second letter, Dr. Jacobs stated: "Pamela [Keyser] is a 49-year-old female with underlying bullous emphysema.... She is at risk for recurrent pneumothoraces based on her persistent bullous emphysema. Given the severity of her bullous emphysema and her [pre-bronchodilator] FEV1 of 46% of predicted, I would recommend disability."[4] (Tr. 312.)

On May 29, 2007, Keyser was examined by a psychiatrist, Dr. Anthony Monteverdi ("Dr. Monteverdi"), who prepared an Initial Psychiatric Assessment. Dr. Monteverdi's diagnoses included: bipolar disorder with manic episodes and some mild psychotic content and a history of polysubstance abuse (Axis I); some paranoid and schizotypal traits (Axis II); past medical issues related to a collapsed lung (Axis III); moderate social stressors (Axis IV); and a Global Assessment of Functioning ("GAF") score of 55 to 65.[5]

During a follow-up visit on June 20, 2007, Dr. Monteverdi noted that Keyser's "affect [wa]s bright" and that "[s]he continue[d] to look improved on the Zyprexa." (Tr. 318.) Keyser was seen by Dr. Jacobs the following day regarding her emphysema and pulmonary nodule. Dr. Jacobs noted that Keyser was "doing reasonably well, " that she denied any increased breathlessness, chest pain, cough, or phlegm production, and that she continued to sing in her husband's rock-and-roll band. (Tr. 339.) Dr. Jacobs' examination revealed that Keyser's emphysema was "clinically stable, " but noted that she remained a "high risk patient." (Tr. 339.)

On August 15, 2007, Keyser informed Dr. Monteverdi that she was running out of Zyprexa and having difficulty affording the appointments due to inadequate insurance and financial hardships. Dr. Monteverdi noted that Keyser had "been maintained quite stable on 15 [milligrams] of Zyprexa, as both the patient and her husband reflect[ed] on today." (Tr. 320.) Dr. Monteverdi therefore provided Keyser with six weeks' worth of Zyprexa samples.

On October 29, 2007, Dr. Monteverdi completed a medical source statement concerning the nature and severity of Keyser's mental impairments. Dr. Monteverdi described Keyser as "moderately" limited in seven of twenty categories of mental activity, and "mildly" limited in thirteen categories. Keyser was "moderately" limited in the following seven categories of mental functioning:

• The ability to understand and remember detailed (three or more steps) instructions or tasks which may or may not be repetitive;
• The ability to maintain attention and concentration for extended periods (the approximately two-hour segments between arrival and first break, lunch, second break, and departure) with four such periods in a workday;
• The ability to interact appropriately with the general public or customers;
• The ability to accept instructions and to respond appropriately to criticism from superiors;
• The ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; and
• The ability to respond appropriately to (a) expected, or (b) unexpected changes in the work setting.

In terms of work-related stressors, Dr. Monteverdi concluded that Keyser's level of impairment would be increased by "[u]nruly, demanding or disagreeable customers even on an infrequent basis, " as well as "[a] need to make quick and accurate, independent decisions in problem solving on a consistent basis." (Tr. 345) (emphasis in original).

The next day, October 30, 2007, Keyser testified at a hearing before Administrative Law Judge John Madden, Jr. ("ALJ" or "ALJ Madden"). Keyser reported that she frequently experiences anxiety, paranoia, and shortness of breath, the latter of which requires her to take several breaks and sit down every half hour, and to nap two or three times daily for around one hour. Keyser testified that even the thought of making the bed is "exhausting." (Tr. 44.) She is unable to stand at a sink or stove for thirty minutes without taking breaks to sit down. She tries to go grocery shopping, but it is difficult for her to maneuver the cart and she becomes short of breath. She is afraid that if she leaves the house and walks down the street, she will not be able to make it back to the house.

Keyser also testified that she is aware she has "bubbles" on her lungs and a "big hole on this one side, " and she is afraid if she does anything she will "pop" one of her lungs. (Tr. 33.) She testified that she sings in her husband's band and that the band practices approximately three times a week, but that she is sitting down when she sings and is required to take many breaks because she gets winded by singing. She testified that the band had not played any "gigs" in a long time, and that the other band members are scared of her and only keep her around because her husband is the leader of the band. Keyser distinguished between singing with her husband's band a few times a week at home, and being able to work, noting that she is afraid of her lung "popping" anywhere outside her home. Because of her fear, she prefers to stay at home and does not like being around a lot of people.

Keyser's husband also testified at the hearing and confirmed that Keyser's depression and bipolar disorder had worsened after her lung collapsed. He further testified that she needs to lie down ninety percent of the day due to fatigue. He testified that prior to her lung collapse and hospitalization, Keyser was a hard worker who never called in sick and was very active. He testified that they never go out to dinner or to the movies, and that Keyser will accompany him to the grocery store on only one of every approximately fifteen trips, but she will wait in the car while he does the shopping.

Relying on opinions as to Keyser's limitations formulated by non-examining state agency consultants, ALJ Madden posed a hypothetical to a vocational expert ("VE1") who testified at Keyser's hearing. Specifically, he asked VE1 to assume that a hypothetical worker could lift twenty pounds occasionally and ten pounds frequently, could stand or walk no more than six hours in an eight-hour workday, and needed to avoid exposure to fumes, odors, dusts, gases, and poorly ventilated areas. VE1 testified that the hypothetical worker could not maintain Keyser's prior work as a grocery store cashier since the majority of the day would be spent standing, but the hypothetical worker could be employed as a different type of cashier, known as a Cashier I or II. Although the Cashier I position is classified as a semi-skilled job, VE1 explained that the Cashier II position involves only unskilled, simple, and routine ...

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