United States District Court, N.D. Ohio, Eastern Division
REPORT AND RECOMMENDATION
KATHLEEN B. BURKE, UNITED STATES MAGISTRATE JUDGE
Matthew Trenka (“Plaintiff” or
“Trenka”) seeks judicial review of the final
decision of Defendant Commissioner of Social Security
(“Commissioner”) denying his application for
Disability Insurance Benefits (“DIB”). Doc. 1.
This Court has jurisdiction pursuant to 42 U.S.C. §
405(g). This matter has been referred to the undersigned
Magistrate Judge for a Report and Recommendation pursuant to
Local Rule 72.2.
reasons set forth below, the undersigned recommends that the
Court find no error with respect to the ALJ's weighing of
the medical opinions rendered by Trenka's treating mental
health providers - Dr. Augis and Dr. Campbell. However, the
undersigned recommends that the Court REVERSE and REMAND the
Commissioner's decision for further evaluation and
explanation of the medical evidence regarding Trenka's
vision impairments and the functional limitations included in
the RFC to account for Trenka's vision impairments. Also,
it is recommended that on remand the ALJ be required to more
fully explain how the RFC limitations adequately account for
Trenka's fatigue, depression and headaches.
protectively filed an application for DIB on June 5,
2012. Tr. 26, 196-202, 222. Trenka alleged a
disability onset date of April 26, 2012, (Tr. 26, 196, 222),
and he alleged disability due to a brain aneurysm, seizures,
and poor vision in his right eye (Tr. 105, 121, 137, 147,
226). After initial denial by the state agency (Tr. 137-140)
and denial upon reconsideration (Tr. 147-153), Trenka
requested a hearing (Tr. 154-155). A hearing was held before
Administrative Law Judge Susan G. Giuffre (“ALJ”)
on March 19, 2014. Tr. 47-102.
June 13, 2014, decision (Tr. 23-46), the ALJ determined that
Trenka had not been under a disability from April 26, 2012,
through the date of the decision (Tr. 26, 41). Trenka
requested review of the ALJ's decision by the Appeals
Council. Tr. 22. On December 14, 2015, the Appeals Council
denied Trenka's request for review, making the ALJ's
decision the final decision of the Commissioner. Tr. 1-6.
Personal, educational, and vocational evidence
was born in 1973. Tr. 40, 196, 222. Trenka completed high
school. Tr. 51, 227. Trenka lives with his girlfriend. Tr.
56. They have been together for close to 20 years. Tr. 62.
past work included various jobs at a cleaning company. Tr.
52-53. Initially, he was a cleaner. Tr. 52. Then he became a
supervisor, a staff manager, and the general manager. Tr.
52-53. When Trenka was working as staff manager, he
supervised about 15 individuals. Tr. 53. His duties included
setting schedules for the individuals he supervised. Tr. 53.
As the general manager, he had the authority to hire and fire
individuals. Tr. 53. After working at the cleaning company,
Trenka started working for a masonry restoration company. Tr.
54. Trenka's work at the masonry restoration company was
very labor intensive, including heavy lifting, climbing up
and down scaffolding, and using electrical tools. Tr. 55. His
last job was at the restoration company. Tr. 56.
April 26, 2012, Trenka's girlfriend found Trenka having a
seizure. Tr. 81, 315, 350, 363. Trenka had no history of
seizures. Tr. 315, 352, 363. He was taken to Hillcrest
Hospital via ambulance and arrived at the hospital
unresponsive. Tr. 315. Trenka was diagnosed with an acute
sub-arachnoid brain hemorrhage. Tr. 304-319. Trenka was
discharged from the emergency room and transferred to
Cleveland Clinic's main campus. Tr. 319. While
hospitalized, coil embolization of right A1/A2 aneurysm was
performed. Tr. 326. Trenka remained hospitalized
until May 10, 2012, when he was discharged to a skilled
nursing facility - Grande Pointe Health Care Community
(“Grande Point”). Tr. 362-363, 533-547. Trenka
was at Grande Pointe until May 25, 2012. Tr. 540.
Trenka's Grande Point Occupational Therapy Discharge
Summary reflects that Trenka was making progress with his
goals and was discharged because he “met [his] highest
potential.” Tr. 540.
25, 2012, Trenka saw Mary E. Aronow, M.D., of the Cleveland
Clinic with complaints of blurry vision and foreign body
sensation. Tr. 588-591. Trenka reported blurry vision since
his coil embolization surgery. Tr. 590. Dr. Aronow noted
reports of anxiety/depression, muscle aches, headaches,
imbalance, seizures, sinusitis, and fatigue. Tr. 588. Dr.
Aronow diagnosed Terson's syndrome (macula affected
OD) and recommended that fundus photos be obtained and that
Trenka follow up with retina clinic in one week. Tr. 590-591.
10, 2012, at the request of Dr. Aronow, Trenka saw Dr. Rishi
Singh, M.D., an ophthalmologist, for a consult regarding his
right eye. Tr. 598-601. Dr. Singh noted that Trenka reported
that following symptoms - intermittent waves in his vision,
which was described as a ghost-like vision; intermittent eye
redness; foreign body sensation; photophobia; and tearing.
Tr. 598. Trenka did not report floaters. Tr. 598. Dr. Singh
recorded Trenka's visual acuity on the right as 20/125
and his visual acuity on the left as 20/20. Tr. 600. Dr.
Singh confirmed the diagnosis of Terson's syndrome
(macula affected OD). Tr. 601. In August 2012, Trenka saw Dr.
Singh for follow-up. Tr. 607-611, 612-615. Trenka reported
blurred vision; eye redness; feeling a foreign object
sensation; feeling like being poked in the eye; and tearing.
Tr. 607. Trenka reported that he always had a headache. Tr.
607. Dr. Singh recorded Trenka's visual acuity on the
right as 20/70 and on the left as 20/20. Tr. 609. Dr. Singh
recommended that Trenka return for follow up in 12 weeks. Tr.
August 8, 2012, Trenka saw Thomas J. Masaryk, M.D., and Susan
Cancian, RN, for a neurological evaluation following his
subarachnoid hemorrhage. Tr. 602-608. Trenka reported feeling
better since his discharge but indicated that his symptoms
included “low grade” headaches, short term memory
difficulty, and significant fatigue. Tr. 602. Dr. Masaryk
recommended follow-up in one year post hemorrhage and also
recommended an evaluation for depression. Tr. 603.
November 19, 2012, Trenka saw Dr. Singh for follow up. Tr.
771-775. Trenka reported rare instances of flashes, floaters,
and occasional discomfort and redness. Tr. 771. He did not
report eye pain. Tr. 771. Dr. Singh recorded Trenka's
visual acuity as 20/300 on the right and 20/20 on the left.
had physical therapy in November and December of 2012 for his
upper and lower back. Tr. 636-640. Trenka was tolerating the
treatment but was continuing to report pain, with reported
pain levels ranging from a 4/10 to an 8/10. Tr. 636-640. Tr.
January 2013, Trenka saw Dr. Riad Laham, M.D., and Mary
Schultz, RN, in the pain department at Hillcrest. Tr.
645-651. Trenka reported headaches and neck and back pain
that started 7-8 months following his aneurysm. Tr. 649.
Trenka had been using Percocet daily with little improvement.
Tr. 649. Trenka was using Celexa for depression. Tr. 649. On
examination, it was observed that Trenka had generalized
tenderness without any major muscle spasm or focal tender
points; his extremities exam was negative; and his neuro exam
was grossly intact without any major motor or sensory
deficit. Tr. 649. Dr. Laham assessed neuropathic pain. Tr.
649. Recommendations included starting Neurontin, continuing
Percocet as needed, and following up in 4 weeks. Tr. 649.
started seeing Rimvydas Augis, Ph.D., Psy.D., for
counseling/psychotherapy in January 2013 (Tr. 759-760) and
continued therapy with Dr. Augis through 2014 (Tr. 671-760).
Trenka reported to Dr. Augis that he had been depressed prior
to the aneurysm. Tr. 759. His parents had both died of cancer
and it took Trenka years after his parents' deaths to
feel like himself. Tr. 759. Trenka indicated he had no
ambition and did not care. Tr. 759. He could not continue to
work because his eye was damaged and he was in constant pain.
January 31, 2013, Trenka saw Sylvester Smarty, M.D., for an
initial psychiatric evaluation. Tr. 664-669. Trenka's
girlfriend was present for the evaluation. Tr. 664. Trenka
relayed that, ever since the aneurysm, things had been a
mess. Tr. 664. He indicated that he had been having anxiety
and depression symptoms for “two decades” and
that his depression had worsened since the aneurysm. Tr. 664.
Trenka indicated that he had suicidal thoughts and wished he
would have died from the aneurysm. Tr. 664. He admitted
having a violent temper and not liking people. Tr. 664. Dr.
Smarty diagnosed episodic mood disorder, NOS, and assessed a
GAF score of 45-50. Tr. 667. Dr. Smarty prescribed Depakote ER
for emotional lability and Klonopin for anxiety, emotional
lability and sleep. Tr. 668.
February 8, 2013, Trenka was seen at Hillcrest Hospital's
emergency room for shoulder pain. Tr. 825-834. Trenka
reported that his pain had been ongoing and he recently
aggravated it two days prior to his visit when he was helping
a friend load a motorcycle into a truck and he slipped and
pulled on his arm in an effort to avoid falling. Tr. 826.
Trenka's pain was constant. Tr. 827. He described his
pain level as an 8/10 but his pain did not radiate and he did
not have numbness or tingling. Tr. 827. Trenka had seen
someone in the pain management department and was prescribed
Neurontin that day. Tr. 826. Trenka was unhappy with the
treatment by pain management and went to the emergency room
for a second opinion. Tr. 826-827. On examination, Trenka
exhibited a good range of motion in his shoulders, neck and
back; his gait was within normal limits; and there was no
noted deformity or swelling. Tr. 828. A shoulder x-ray showed
no acute soft tissue or bony abnormality. Tr. 831. The
emergency room provider diagnosed shoulder pain/muscle
strain. Tr. 828, 832. Since Trenka had already been seen by
pain management that day for the same pain, no prescription
was provided to Trenka. Tr. 829. Trenka was stable at
discharge. Tr. 829.
saw Dr. Singh again on February 11, 2013, for follow up. Tr.
776-780. Trenka's symptoms included redness and
irritation in the right eye, as if someone had poked him in
the eye, and flashes. Tr. 776. Trenka did not report
floaters. Tr. 776. Trenka did report intermittent eye pain
ranging from a 2 at the low end to a 9 at the high end, with
zero being the lowest and 10 being the highest. Tr. 776. Dr.
Singh recorded Trenka's visual acuity as 20/600 in the
right eye and 20/20 in the left eye. Tr. 778. Dr. Singh
continued to diagnose Terson's syndrome (macula affected
OD). Tr. 779. Dr. Singh noted that Trenka appeared improved
but overall Trenka's vision was poor which Dr. Singh
indicated was “from likely optic nerve dysfunction or
retinal atrophy.” Tr. 779. Dr. Singh also indicated
that Trenka was continuing to have headaches. Tr. 779.
February 28, 2013, Trenka saw Dr. Smarty again. Tr. 662-663.
Trenka reported that he was feeling depressed because his
medical condition was not improving. Tr. 662. He had been
short tempered and irritable and was not sleeping well. Tr.
662. Dr. Smarty started Trenka on Zoloft for his depressive
symptoms and recommended that he begin supportive therapy.
Tr. 663. On March 28, 2013, during a follow-up visit with Dr.
Smarty, Trenka reported that he was doing a little better.
Tr. 660. He was not as irritable as he had been. Tr. 660.
Trenka thought his irritability might have been because of
the Neurontin. Tr. 660. He was sleeping better but was still
feeling fatigued and having anxiety symptoms. Tr. 660. Trenka
denied suicidal thoughts. Tr. 660. Dr. Smarty increased
Trenka's Zoloft dosage to help him with his depressive
and anxiety symptoms and continued other medication. Tr. 661.
April 2013, Trenka saw Dr. Augis and reported that he started
working on painting three football player figures. Tr. 741.
After working on them for a period of time his eyes started
to hurt. Tr. 741. On May 16, 2013, Trenka reported to Dr.
Augis that he had noticed improvement in the length of time
he could play the drums. Tr. 729. Also, he had been able to
work in the yard for about 2-3 hours but afterward he was
tired for 2 days. Tr. 729. Also, in May 2013, Trenka relayed
to Dr. Augis that he was easily tired and exhausted but he
also indicated that his primary care physician was
encouraging him to do more things. Tr. 727.
2013, Trenka transferred from Dr. Smarty to Elaine Campbell,
M.D., for his mental health care. Tr. 658-659. Trenka
reported low energy, constant pain, and irritability from the
pain. Tr. 658. He indicated that he isolates himself and had
poor sleep but a good appetite. Tr. 658. Dr. Campbell noted
that Trenka's mood/affect was depressed. Tr. 658. Dr.
Campbell adjusted Trenka's medications. Tr. 659. Trenka
continued to see Dr. Campbell in 2013. Tr. 652-657.
21, 2013, Trenka saw Nurse Schultz with complaints of a
headache and upper and lower back pain. Tr. 840-842. Trenka
was rating his pain about a 5 out of 10, with the pain mostly
between his shoulder blades. Tr. 842. Trenka reported relief
from use of a TENS unit, application of heat and medication.
Tr. 840. Trenka reported that his activities of daily living
had improved and he reported no difficulty performing or
completing daily living activities. Tr. 840. Nurse
Schultz's impression was neuropathic and myofascial pain
and she increased his prescription for Elavil. Tr. 842.
a June 2013 visit with Dr. Augis, Trenka indicated that his
band had not practiced for a month or so. Tr. 723. Trenka was
trying to increase his stamina for playing the drums. Tr.
723-724. Also, in June 2013, Trenka reported feeling good
about finishing figurines he had been working. Tr. 721. He
indicated though that, since his aneurysm, it took him much
longer to do the work and he did not want to take many orders
from customers because he was still not in great shape and
did not have a lot of motivation to do the work. Tr. 721-722.
August 2013, Trenka saw Dr. Singh again. Tr. 781-785. Trenka
reported blurred vision, difficulty reading (headaches after
15 minutes of reading); difficulty watching television
(seeing the words on the television); floaters (white
squiggly lines); and photophobia. Tr. 781. Trenka was
continuing to have headaches. Tr. 784. Trenka informed Dr.
Singh that two spinal taps had been performed with normal
intracranial pressure. Tr. 784. Dr. Singh recorded
Trenka's visual acuity as 20/1000 in the right eye and
20/20 in the left eye. Tr. 783. Dr. Singh continued to assess
Terson's syndrome (macula affected OD) but noted that
Trenka appeared stable. Tr. 784. Dr. Singh noted that
Trenka's poor vision was likely due to optic nerve
dysfunction or retinal atrophy. Tr. 784.
October 2013, Trenka saw Dr. Laham and Lindsay Kennedy, PCNA,
with complaints of headaches and neck and back pain. Tr.
842-845. Dr. Laham's impression was neuropathic and
myofascial pain and medication was prescribed. Tr. 845.
2013 and 2014, Trenka also saw and was treated by his primary
care physician Miodrag Zivic, M.D., with various complaints,
including upper back pain, high blood pressure, fatigue,
ringing in his ears, headaches and dizziness. Tr. 792-814.
was continuing to see Dr. Augis as well. Tr. 671-760. At
times, Trenka reported being able to be around others but
other times Trenka was continuing to isolate. For example, in
early December 2013, Trenka relayed to Dr. Augis that he had
gone to his aunt's home for Thanksgiving and it was
“OK” whereas in the past it had been too much for
him. Tr. 687. In contrast, later in December 2013, Trenka
reported that his girlfriend had been out of town and he was
alone and felt anxious and did not leave the house. Tr. 683.
In January 2014, Trenka reported that he had decided that two
of his friends had let him down and he felt that maintaining
the friendships was not worth it. Tr. 675. He did not want to
attend a friend's wedding because he did not want to get
into fake conversations and was not good at mingling. Tr.
12, 2014, Trenka saw Deborah E. Tepper, M.D., of the
Cleveland Clinic Headache Center for an opinion regarding his
headaches. Tr. 863-876. Dr. Tepper felt that Trenka's
ongoing use of narcotics to treat his headaches was feeding
into a chronic pain syndrome with his back and neck. Tr. 868.
She recommended that he avoid the use of pain medication more
than 2 days per week and avoid narcotics all together. Tr.
868. She also recommended that Trenka increase his level of
activity to a half hour per day and participate in some type
of organized activity. Tr. 868. Trenka was isolating himself,
often in the basement with dim lighting, which would only
serve to impact Trenka's sensitivity to light and other
stimulation. Tr. 868. Dr. Tepper's diagnoses included
chronic migraine, headache attributed to subarachnoid
hemorrhage, and headache attributed to intracranial
endovascular procedures. Tr. 868.
Treating source opinions
February 10, 2014, Dr. Augis completed an Assessment of
Ability to Sustain Work-Related Activities (Mental). Tr.
761-765. Dr. Augis indicated that Trenka had been diagnosed
with adjustment disorder with anxiety and depression. Tr.
765. He opined that Trenka had less than a 40% ability to
perform the following work-related tasks: complete a normal
workday and workweek without interruptions from
psychologically based symptoms; perform at a consistent pace
without an unreasonable number and length of rest periods;
maintain attention and concentration for extended periods
(approximately 2-hour segments between arrival and first
break, lunch, second break, and departure); interact
appropriately with the general public and accept instructions
and respond to criticism from supervisors; respond
appropriately to changes in a work setting; and deal with
ordinary work stress. Tr. 761-764. Dr. Augis opined that
Trenka had the ability to get along with coworkers or peers
and maintain socially appropriate behavior approximately 45%
of the time. Tr. 762. Dr. Augis opined that Trenka had the
ability to sustain an ordinary routine without special
supervision and work in coordination with or in proximity to
others without being unduly distracted by them between 60-80%
of the time. Tr. 761. Dr. Augis also opined that Trenka had
the ability to understand and remember very short and simple
instructions and carry out short and simple instructions
approximately 85% of the time. Tr. 761. Dr. Augis opined that
Trenka would likely be absent from work more than four times
per month as a result of his impairments or treatment. Tr.
Augis explained in narrative form that Trenka would be unable
to sustain certain activities for an 8-hour work shift
because his anxiety and depression would prevent him from
sustaining attention and concentration. Tr. 762. Dr. Augis
stated that, before his aneurysm, Trenka was able to
compensate for unresolved conflicts with his father but now
his functioning was impacted. Tr. 763. Dr. Augis indicated
that Trenka's ability to function in any setting,
including work, was very limited. Tr. 764. Based on his 47
individual counseling sessions with Trenka, Dr. Augis stated
that the aneurysm had significantly impaired Trenka's
adaptation; increased his anger and inappropriate outbursts,
self-destructive thoughts and suicidal ideation, confusion,
social isolation, and decreased his frustration tolerance.
February 27, 2014, Dr. Campbell completed an Assessment of
Ability to Sustain Work-Related Activities (Mental). Tr.
820-822. Dr. Campbell opined that Trenka was very limited in
all work-related areas. Tr. 820-822. Dr. Campbell opined that
Trenka could carry out short and simple instructions about
25% of the time. Tr. 820. In all other areas rated, Dr.
Campbell opined that Trenka could perform the work-related
tasks 20% or less of the time. Tr. 820-822. Dr. Campbell
opined that Trenka would likely be absent from work more than
four times per month due to his impairments or treatment. Tr.
Campbell indicated that Trenka had initially been diagnosed
with adjustment disorder. Tr. 821. However, due to
Trenka's poor response to treatment, Dr. Campbell
suspected a diagnosis of bipolar disorder. Tr. 821. Dr.
Campbell indicated that the aneurysm caused headaches, memory
loss and poor focus which lead to decreased comprehension.
Tr. 821. Dr. Campbell also indicated that Trenka had severe
mood swings with irritability being prominent. Tr. 822. Also,
Dr. Campbell noted that Trenka's medication causes
increased sedation. Tr. 822.
February 11, 2014, Dr. Singh completed a statement regarding
Trenka's visual acuity and associated limitations. Tr.
786-791. Dr. Singh indicated that Trenka had Terson's
syndrome OD (right eye). Tr. 789. Dr. Singh indicated that
Trenka's best-corrected visual acuity as of August 12,
2013, was 20/20 in the left eye and 20/1000 in the right eye.
Tr. 789. Dr. Singh opined that, due to his visual loss,
Trenka could not safely drive large commercial vehicles or
machinery without excessive risk to others. Tr. 789. Dr.
Singh indicated that Trenka should have an occupational
health therapy evaluation “to determine A
C.” Tr. 789.
February 24, 2014, Dr. Zivic completed a “General
Medical Source Statement: Detailed with Hands about what the
claimant can still do despite impairment(s).” Tr.
815-819. Dr. Zivic indicated that he saw Trenka every 2-3
months for 18 months, with a diagnosis of aneurysmal
subarachnoid hemorrhage. Tr. 815. Dr. Zivic indicated that
Trenka's prognosis was “good.” Tr. 815. Dr.
Zivic noted the following clinical findings: headache,
blurred vision, fatigue, and depression. Tr. 815.
Trenka's symptoms included: multiple tender points;
excessive fatigue; stiffness; frequent, severe headaches;
neck pain; chronic pain; numbness and/or tingling; dizziness;
depression; and back pain. Tr. 815. Dr. Trenka did not
believe that Trenka was a malingerer. Tr. 815. Dr. Zivic
opined that emotional factors contributed to Trenka's
symptoms and functional limitations. Tr. 815. Dr. Zivic noted
that Trenka's pain was located bilaterally in his
thoracic spine, shoulders, and legs. Tr. 816. The following
factors made Trenka's pain worse - changing weather,
fatigue, activity and repetitive motion. Tr. 816. Medication
side-effects included dizziness, drowsiness, and tiredness.
Zivic opined that, in an eight-hour workday, Trenka could
stand or walk continuously at one time for 30 minutes;
stand/walk for a total of 1 hour or less; sit at one time
before requiring a rest or an alternate posture for 1 hour;
and sit for a total of 3 hours. Tr. 817. Dr. Zivic opined
that Trenka would require a job that would allow for shifting
positions at will from sitting, standing or walking and
Trenka would need to take unscheduled 15-minute breaks
frequently during the workday to sit quietly or stretch. Tr.
817. Dr. Zivic indicated that Trenka would not require use of
a cane or other assistive device and would not need to
elevate his legs with prolonged sitting. Tr. 817. Dr. Zivic
was asked to offer his opinion regarding Trenka's ability
to perform other activities, with the following rating
choices - “never/rarely, ” with
“rarely” defined as 1%-5% of an 8-hour workday;
“occasionally” defined as 6%-33% of an 8hour
workday; “frequently” defined as 34%-66% of the
workday; and “constantly.” Tr. 818. Using the
foregoing ratings, Dr. Zivic opined that Trenka could lift
and carry less than 10 pounds frequently; 10-20 pounds
occasionally; and 50 pounds never/rarely. Tr. 818. Dr. Zivic
also opined that Trenka could never/rarely kneel, stoop, and
crouch/squat and he could occasionally bend, climb stairs,
balance, look down (sustained flexion of neck), turn head
right, look up, and turn head left. Tr. 818. Dr. Zivic
indicated that Trenka had no significant ...