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Keeser v. Saul

United States District Court, W.D. Wisconsin

November 5, 2019

ANDREW SAUL, Commissioner of Social Security, Defendant.



         Plaintiff Jessica M. Keeser is seeking review of a final decision denying her claim for supplemental security income under the Social Security Act. 42 U.S.C. § 405(g). (I have amended the caption to reflect the fact that the new Commissioner of Social Security is Andrew M. Saul.) Plaintiff contends that she has been disabled since March 2014 because of a combination of physical and mental impairments. An administrative law judge concluded that even though plaintiff has severe impairments, she is not disabled because she can perform a range of sedentary work for which there are a significant number of jobs in the national economy. Plaintiff contends that the administrative law judge's decision is not supported by substantial evidence. For the reasons explained below, I am not persuaded by plaintiff's arguments. Therefore, I will affirm the commissioner's decision.

         The following facts are drawn from the administrative record (AR).


         A. Social Security Application and Background

         Plaintiff Jessica Keeser was born in 1974. She filed for supplemental security income in October 2014, contending that she had been disabled since March 2014 by numerous physical and mental impairments, including a post-aneurysm seizure disorder, short-term memory loss, degenerative joint disease, osteoarthritis of the left and right knees, obesity, depression, anxiety, schizophrenia, bipolar disorder, post-traumatic stress disorder, chronic obstructive pulmonary disease, asthma, migraine headaches and a right rotator cuff tear. Her application was denied initially and on reconsideration, and plaintiff requested a hearing before an administrative law judge. After the hearing, the administrative law judge issued a written decision concluding that plaintiff was not disabled. AR 13-28. In July 2018, the appeals council denied plaintiff's request for review. AR 1.

         B. Relevant Medical Evidence and Opinions

         1. Physical impairments

         Plaintiff had reconstructive surgery on her right knee in 2012. AR 488. She continued to experience knee pain, instability and falls until July 2014, when she had a total right knee replacement. AR 638. In April 2016, medical imaging showed that plaintiff's left knee had osteoarthritis. AR 1081-82. In June 2016, she had a total left knee replacement. AR 1104.

         Plaintiff's right shoulder and elbow began hurting in 2012, and she had difficulty lifting things. AR 450. The medical records show that plaintiff complained about her right shoulder on and off from 2012 until she had surgery to repair a torn tendon in her right shoulder in February 2017. AR 600, 799, 963, 1185, 1201.

         In July 2014, plaintiff's treating physician's assistant, Rachael Busalacchi, wrote a letter stating that because of plaintiff's “multiple health issues and scheduled surgeries, ” plaintiff may be off work “over 12 months depending on surgical recommendations.” AR 795.

         In June 2015, Dr. Michael Sullivan, a family practice physician who supervised Busalacchi, completed a “physical residual functional capacity questionnaire” indicating that plaintiff had back pain, shoulder pain, knee pain, gait abnormality and used a cane or crutches for an assistive device. AR 994-98. He concluded that plaintiff could sit for approximately 15 minutes and stand for 10 minutes, but could sit and stand less than two hours in an eight-hour day. He also stated that plaintiff would need to shift positions at will and possibly walk five minutes of every 15 minutes. She would require unscheduled breaks and could lift less than ten pounds. She could use her hands and fingers zero percent of the workday, and she could use her arms approximately 10% of the workday. She likely would be absent more than four days each month. Sullivan also stated that plaintiff struggled with chronic low back and knee pain, “but maybe more limiting is her seizure disorder, psychiatric limitations and mental function related to brain aneurysm rupture.” AR 998.

         Dr. Sullivan also completed a “seizure residual functional capacity questionnaire, ” writing that plaintiff has unpredictable, generalized seizures that last for approximately five minutes, with symptoms lasting between one and three hours, including confusion and exhaustion. AR 1001-04. He gave the opinion that plaintiff would likely be absent four or more days each month and would not be capable of tolerating even low stress work. Id.

         As for her mental health, plaintiff has a history of depression and anxiety and has been given diagnoses of bipolar disorder and personality disorder. (Plaintiff has not developed any argument that the administrative law judge should have given more consideration to her bipolar or personality disorder.) Her medical records show that she has received psychotherapy and has taken numerous medications for her mental health problems. She had a brain aneurysm at age 19 and had three clips placed in her brain. She occasionally suffers seizures and short-term memory problems as a result of the aneurysm. She went to the emergency room for a possible seizure in September 2014. AR 714-15, In March 2013, before plaintiff's alleged onset date, consultative psychologist Cheryl Roets completed an examination report stating that plaintiff had difficulty concentrating, was easily distracted and had racing thoughts. AR 561-67. She was able to name only two of the four states bordering Wisconsin and her ability to engage in abstract thinking was in the low average range. AR 564. Roets concluded that plaintiff's prognosis was guarded, her ability to maintain concentration, attention and work pace was marginal and she would struggle with routine work stress and changes in the environment. AR 565. Roets also stated that it would be best if someone else managed plaintiff's funds. AR 566.

         Plaintiff was examined by two independent consultative examiners in March 2015. Dr. John Kelly, a family practice physician, found that plaintiff had residual cognitive defects from her ruptured cerebral aneurysm, but that she could be trained to use a computer and possibly to do minor office work. AR 836. Dr. Richard Yanchar, a clinical psychologist, found that plaintiff was more limited, with social anxiety, fair to poor abstract thinking, low average judgment, impoverished mental activity and impaired memory functions. AR 842-44. Yanchar stated that plaintiff's ability to maintain concentration, attention and work pace and to withstand routine work stressors or adapt to changes appeared to be very poor. AR 845.

         C. Administrative Hearing

         At the administrative hearing, plaintiff testified that she had last worked performing sanitation work at Tyson Foods in 2014, which required her to spray down equipment and lift between 10 and 30 pounds. AR 95. She left that job after three or four months because she could not handle it physically. Id. She testified that she could drive, but did not drive often. Id. She stated that she could stand on her feet for 10 to 15 minutes at a time before needing to sit down or lie down and put up feet. AR 99. She could walk about half a block before stopping, and had been using a walker for about a year. AR 96. Before getting the walker, plaintiff used crutches or a cane. AR 98. She can lift no more than 10 pounds with her left hand, and less with her right because she had surgery on her right shoulder in 2017. On a typical day, plaintiff lies down or sits with her feet up for 80 percent of the day. AR 98. She has an assistant who helps her with meals. Plaintiff testified that she does not perform any household chores with the exception of folding laundry, which she can sit and fold for about five minutes before needing to lie down. AR 97. Her assistant takes her to the store if she needs something, but plaintiff generally waits in the car or sometimes rides on a scooter. AR 97. Plaintiff testified that she has a seizure about once a month and usually needs two days to recover from them. AR 99. Her hands are numb about 80 percent of the day. AR 100. She also testified that she has trouble being around people, and that she has to stay home by herself two or three days a week. AR 96. She occasionally has crying spells and has to sit alone in a dark room at her house until she feels better. AR 99.

         D. Administrative Law Judge's Decision

         The administrative law judge found that plaintiff had not engaged in substantial gainful activity since before her application date on October 8, 2014. AR 15. (She earned $2, 517.99 from Tyson Prepared Foods in early 2014. Her work history shows only sporadic and short-term employment in the years before 2014.) The administrative law judge next found that plaintiff had the following severe impairments: status-post aneurysm with seizure disorder and short-term memory loss, degenerative joint disease of the left knee, status post-replacement, obesity, depression and ...

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