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Trenka v. Commissioner of Social Security Administration

United States District Court, N.D. Ohio, Eastern Division

December 8, 2016

MATTHEW TRENKA, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          JUDGE, SARA LIOI

          REPORT AND RECOMMENDATION

          KATHLEEN B. BURKE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         For the 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.

         I. Procedural History

         Trenka protectively filed an application for DIB on June 5, 2012.[1] 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.

         In her 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.

         II. Evidence

         A. Personal, educational, and vocational evidence

         Trenka 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.

         Trenka's 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.

         B. Medical evidence

         1.Treatment records

         On 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.[2] 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.

         On June 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[3] (macula affected OD) and recommended that fundus photos be obtained and that Trenka follow up with retina clinic in one week. Tr. 590-591.

         On July 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. 610.

         On 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.

         On 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. Tr. 773.

         Trenka 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. 363-640.

         In 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.

         Trenka 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. Tr. 759-760.

         On 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.[4] Tr. 667. Dr. Smarty prescribed Depakote ER for emotional lability and Klonopin for anxiety, emotional lability and sleep. Tr. 668.

         On 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.

         Trenka 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.

         On 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.

         In 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.

         In May 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.

         On May 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.

         During 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.

         In 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.

         In 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.

         During 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.

         Trenka 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. 675.

         On May 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.

         2.Opinion evidence

         a. Treating source opinions

         Dr. Augis

         On 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. 764.

         Dr. 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. Tr. 765.

         Dr. Campbell

         On 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. 822.

         Dr. 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.

         Dr. Singh

         On 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).[5] 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.”[6] Tr. 789.

         Dr. Zivic

         On 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. Tr. 816.

         Dr. 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 ...


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