United States District Court, N.D. Ohio, Eastern Division
CALEB J. RECK, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION & ORDER
Kathleen B. Burke United States Magistrate Judge
Caleb J. Reck (“Plaintiff” or “Reck”)
seeks judicial review of the final decision of Defendant
Commissioner of Social Security (“Defendant” or
“Commissioner”) denying his application for
social security disability benefits. Doc. 1. This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g). This case
is before the undersigned Magistrate Judge pursuant to the
consent of the parties. Doc. 13. As explained more fully
below, the Court AFFIRMS the
protectively filed an application for Disability Insurance
Benefits (“DIB”) on March 26, 2015. Tr. 13, 63, 73,
180-186. Reck alleged a disability onset date of November 11,
2014. Tr. 13, 31-32, 63, 180, 228. He alleged disability due
to PTSD, spondylosis, and radiculopathies. Tr. 63, 89, 101,
231. Reck's applications were denied initially (Tr.
89-91) and upon reconsideration by the state agency (Tr.
101-107). Thereafter, he requested an administrative hearing.
December 14, 2016, Administrative Law Judge Jeffrey Raeber
(“ALJ”) conducted an administrative hearing. Tr.
29-62. In his January 9, 2017, decision (Tr. 10-28), the ALJ
determined that Reck had not been under a disability within
the meaning of the Social Security Act from November 11,
2014, through the date of the decision (Tr. 13, 23). Reck
requested review of the ALJ's decision by the Appeals
Council. Tr. 8-9. On March 3, 2017, the Appeals Council
denied Reck's request for review, making the ALJ's
decision the final decision of the Commissioner. Tr. 1-5.
Personal, vocational and educational evidence
was born in 1990. Tr. 22, 180. At the time of the hearing,
Reck had been married just over a year and he resided with
his wife and three-year old son. Tr. 37-38. Reck completed
high school. Tr. 40.
last job was working as a supervisor at TK Gas where they
“flowed wells, condensation, and gas to the surface to
the pipeline.” Tr. 34. As a supervisor, Reck managed
three to four workers at a time. Tr. 34. Reck was involved in
supervising and he was involved in the well work too. Tr. 34.
Reck worked at TK Gas for about six months. Tr. 34. He left
the TK Gas job after seeing a co-worker “burn to
death” in an accident at work. Tr. 34-35. Before
working at TK Gas, Reck worked for about four months at JW
Energy doing wire line work. Tr. 35. Reck also worked for
about nine or ten months for Integrated Production Services
doing coil tubing work. Tr. 35. Prior to working the
foregoing jobs, Reck was in the Marine Corps from January 25,
2009, through October 26, 2012. Tr. 36. While in the Marine
Corps, Reck's jobs included motor transport vehicle
operator, logistics vehicle system operator, and machine
gunner. Tr. 36. Reck left the Marine Corps through “the
early out program.” Tr. 36. He had a job waiting with
Integrated Production Services and was no longer able to
deploy so he felt his service was no longer needed. Tr.
December 2014, Reck was screened and evaluated at the
Veterans Administration Hospital (“VA”) for
traumatic brain injury (“TBI”). Tr. 436-444,
444-445. Reck reported experiencing two blasts or explosions
in June 2011 while deployed. Tr. 437, 444-445. During both
explosions, Reck was hit by debris, shrapnel or other items
and, during one explosion, Reck was thrown to the ground or
against a stationary object. Tr. 437. Immediately following
the explosion, Reck was dazed, confused or “seeing
stars.” Tr. 445. Since the explosion, Reck reported
that the following problems started or had gotten worse:
memory problems or lapses, balance problems or dizziness,
sensitivity to bright light, irritability, headaches, and
problems with sleep. Tr. 445. Reck's TBI screening was
positive and he was referred for a further evaluation. Tr.
further evaluation at the VA's TBI clinic was on December
10, 2014, by Elizabeth Treiber, a nurse practitioner. Tr.
436-444. Reck explained his memory was “not too
bad” - he forgot little things but nothing severe. Tr.
440. He was having four to six headaches each day, lasting
from one minute to two hours. Tr. 440. Reck was not taking
any pain medications at the time and he was not taking
medication prescribed by his primary care physician for
headaches because he was concerned about side effects. Tr.
440. Reck reported problems sleeping and feeling irritable
all the time. Tr. 440-441. He had started Celexa the week
prior and was starting to feel better. Tr. 441. Reck denied
suicidal and homicidal ideation. Tr. 441. He reported pain in
his neck, lower back, shoulders, knees and ankles. Tr. 441.
On physical examination, Reck's range of motion in his
extremities was within normal limits and his strength was
normal. Tr. 441. Reck's gait was normal. Tr. 442. He
showed difficulty with tandem Romberg testing. Tr. 442. He
exhibited decreased sensation to light touch on the left side
of his face and scalp. Tr. 442. Reck was engaged to the
mother of his 18 month-old son. Tr. 441. He had stopped
working in November 2014 to address his worsening
irritability. Tr. 441. Reck indicated he eventually wanted to
return to his job. Tr. 441. He was taking groups of people
goose hunting. Tr. 441. Nurse Treiber prescribed a different
medication for Reck's headaches. Tr. 443. Nurse Treiber
referred Reck to Dr. Mark Walker for a neurological consult
and to Dr. Suzanne Ruff for discussion of non-medication
management of Reck's headaches and sleep hygiene. Tr.
439, 443. She also encouraged Reck to continue with mental
health treatment at the VA. Tr. 443.
December 29, 2014, Reck saw Dr. Ruff in Polytrauma Behavioral
Medicine regarding his chronic headaches and problems
sleeping. Tr. 366-367. Reck was having daily headaches that
were short in duration but intense. Tr. 367. He was also
having left-sided migrainous headaches with photo-phobia but
no nausea. Tr. 367. Reck indicated that his back pain greatly
disrupted his sleep. Tr. 367. Reck was agreeable to a mental
health consultation. Tr. 367.
January 7, 2015, Reck saw Dr. Walker for a neurological
consult regarding his imbalance issues. Tr. 369-373. Dr.
Walker observed that Reck's examination showed a mild
imbalance that was worse with eyes closed. Tr. 373. Dr.
Walker indicated that, otherwise, there were “no
specific signs to localize this to the peripheral or central
vestibular system” and a December 16, 2014, brain MRI
was normal. Tr. 331, 373. But Dr. Walker noted that it was
possible that Reck had a mild vestibular injury (peripheral
or central) that was not evident on examination. Tr. 373.
Thus, Dr. Walker referred Reck to vestibular therapy for
additional evaluation and treatment. Tr. 373.
missed a physical therapy vestibular balance appointment in
February 2015 and a new consult was not scheduled. Tr.
355-356. It was noted that, if a new consult was submitted,
Reck's primary care physician would need to document in
Reck's file the importance of the appointment and
Reck's willingness to keep the appointment. Tr. 356.
January 26, 2015, Reck saw Dr. Kalyani Shah regarding his low
back pain, neck pain, and bilateral knee pain. Tr. 357-362.
Reck reported that his low back pain radiated to his legs
bilaterally. Tr. 358. He described his low back pain as sharp
and the pain was aggravated by bending, leaning forward,
walking and taking the stairs. Tr. 358. The pain was
alleviated by sitting, lying down, resting, taking
medication, changing positions, and using heat and ice.
Tr.358. Reck reported numbness in his bilateral extremities.
Tr. 358. Reck's neck pain radiated to his arms and was
aggravated by looking up and by rotation. Tr. 358. His knee
pain was sharp and was aggravated by walking. Tr. 358. On
examination, Reck was in no acute distress. Tr.359. His mood
was normal and his affect was appropriate. Tr. 359. His gait
was non-antalgic. Tr. 360. He was able to walk on his heels
and toes without difficulty for a few steps. Tr. 360. Reck
had painful range of motion in his cervical spine with
flexion and painful range of motion in his lumbar spine with
flexion and extension. Tr. 360. Straight leg raise was
negative in Reck's bilateral lower extremities. Tr. 360.
He exhibited muscle tenderness in his cervical paraspinals
and lower lumbar paraspinals bilaterally. Tr. 360. Reck's
sensation was intact to light touch. Tr. 360. His motor
strength was normal in his bilateral upper and lower
extremities. Tr. 360. Imaging studies of the cervical spine
from December 2014 showed mild disc space narrowing and
straightening of the cervical lordosis. Tr. 329, 360. Imaging
studies of the lumbar spine from December 2014 showed disc
space narrowing at the L5-S1 level with anterolisthesis and
probable bilateral spondylosis. Tr. 328, 360-361. Dr. Shah
prescribed medication and referred Reck for physical therapy
for his cervical and lumbar spine. Tr. 361.
March 11, 2015, Reck saw Nathan Stephens, a clinical
psychologist, for an initial psychological assessment. Tr.
407-410. Reck was referred to Dr. Stephens for evaluation of
his PTSD symptoms. Tr. 407. Reck reported various symptoms,
including nightmares, anxiety, anger, having a short-fuse,
depression, desire to avoid crowds, and having an unstable
mood. Tr. 407-408. Reck relayed that his fiancée and
father had encouraged him to seek mental health treatment
from his primary care physician because they were concerned
about his mood and behavioral “red flags.” Tr.
410. Reck indicated that he used to enjoy going out and
socializing but now hates doing so. Tr. 408. Reck reported
that stressors included not working. Tr. 408. Reck indicated
he had not worked since November 2014 because of medical
concerns and difficulty getting along with others at work.
Tr. 408. On examination, Dr. Stephens observed Reck to be
alert and oriented, psychomotor activity was within normal
limits, his speech was normal, his cognition was grossly
intact, his thought process was coherent and goal directed,
he had no delusions or hallucinations, he denied suicidal or
homicidal ideation, his mood was severely depressed and his
affect was blunted, and he had good judgment and insight. Tr.
408. Dr. Stephens assessed unspecified anxiety disorder,
unspecified depressive disorder, and rule out PTSD. Tr. 410.
Due to time limitations, Dr. Stephens was unable to complete
the assessment and indicated that further evaluation of
Reck's PTSD symptoms would occur during the next session.
March 11, 2015, Reck also saw and Jennifer Spies, a nurse
practitioner, in the psychiatry department for medication
management. Tr. 403-407. Nurse Spies reviewed Reck's
current medications and Reck indicated he felt that his
medications were starting to work. Tr. 404. He was still
having problems with anger, irritability, sleep and
depression. Tr. 404. On examination, Nurse Spies observed
that Reck's speech was clear, his thought process was
future oriented, he had no suicidal or homicidal ideations,
his mood was “okay, ” his affect was flat, his
insight/ judgment were fair, his sensorium/cognition were
good, he had mild issues with short term memory, and his
attention span was fair. Tr. 405. Also, it was noted that
Reck's appetite was good and his energy was up and down
and, his impulse control was noted as “anger and
irritability.” Tr. 405. Nurse Spies continued Reck on
citalopram and restarted him on prazosin. Tr. 406.
of Reck's knees were taken on March 16, 2015. Tr.
326-327. They showed no significant abnormality of the bones,
joints or adjacent soft tissue. Tr. 326-327.
presented for an initial physical therapy session on April 3,
2015, with Jared Roberts. Tr. 340-342, 398-400. Reck's
main complaint was low back pain. Tr. 340. He reported
radicular shooting, tingling symptoms bilaterally down his
legs into his feet. Tr. 340. Reck indicated that his low back
pain symptoms had increased over the prior few months. Tr.
340. His symptoms were exacerbated by bending forward,
sitting for using the restroom, long periods of standing, and
doing the dishes. Tr. 340. Reck reported getting little pain
relief from over-the-counter NSAIDs. Tr. 340. Reck was not
involved in a regular exercise routine. Tr. 340. Mr. Roberts
indicated that Reck's subjective complaints and objective
examination findings were most consistent with discogenic low
back pain. Tr. 341. Mr. Roberts noted decreased lumbar range
of motion in extension, decreased hip strength, decreased hip
flexibility, and decreased core stabilization. Tr. 341. Mr.
Roberts recommended that Reck attend one therapy session per
week for four weeks. Tr. 341. Reck missed physical therapy
appointments on April 22, 2015, and April 29, 2015. Tr. 388,
607. Due to Reck's failure to attend his physical therapy
appointments, Reck's future appointments were cancelled
by the physical therapy department. Tr. 607.
saw Dr. Stephens and Nurse Spies again on April 10, 2015. Tr.
388-390, 393-397. Dr. Stephens noted that Reck presented
himself in a neutral mood with a somewhat brighter affect.
Tr. 388. Reck was cooperative and pleasant and open and
forthcoming during his session with Dr. Stephens. Tr. 388.
Nurse Spies observed that Reck's speech was clear; his
thought process was future oriented; his mood was
“okay;” his affect was flat; his insight/judgment
were fair; his sensorium/cognition were good; and he had mild
issues with short term memory. Tr. 395. Reck reported to Dr.
Stephens and Nurse Spies that he had considered suicide two
weeks earlier while visiting his father in Illinois. Tr. 389,
394. He found a loaded gun at his father's house and
considered using it. Tr. 389. He woke his father up and
talked with him throughout the night. Tr. 389. Reck indicated
that the incident scared him. Tr. 389. He reported that he
was not currently having suicidal ideations. Tr. 389, 394.
Reck reported a remote legal problem from having been in a
fight at a country concert. Tr. 389, 390. He was not charged
in connection with the incident. Tr. 390. Reck relayed to
Nurse Spies that he felt that his medications were working to
improve his mood, decrease his depression, decrease his
irritability and helping with his nightmares and dizziness.
Tr. 394. He was still having problems sleeping, ongoing low
back pain, and ongoing issues with headaches. Tr. 394. Reck
was not taking topiramate for his headaches. Tr. 394. Since
having stopped taking the topiramate in February, Reck's
headaches had gotten worse. Tr. 391. Nurse Spies placed a
call to Nurse Treiber while Reck was with her. Tr. 391. Reck
explained he had given topiramate a “good try”
but was not interested in restarting that medication. Tr.
391. He was interested in trying a different medication. Tr.
391. Nurse Treiber started Reck on amitriptyline and
continued him on prazosin for restless sleep, nightmares, and
headache prevention. Tr. 392. An EKG was ordered. Tr. 392,
396. Reck's leisure activities included waterfowl hunting
and spending time with his family. Tr. 390. Dr. Stephens
recommended that Reck begin therapy. Tr. 390. Reck agreed to
start therapy in three to four weeks and contact the mental
health clinic sooner if needed. Tr. 390.
19, 2015, Reck saw Nurse Treiber in the TBI clinic for follow
up concerning his headaches. Tr. 470-473. Reck relayed that
things were going "okay.” Tr. 470. He had recently
returned from a vacation that he took with his
fiancée, son, and service dog to Tennessee. Tr. 470.
They were visiting with his fiancée's family. Tr.
470. They all enjoyed themselves and were able to relax. Tr.
470. Reck was not working. Tr. 470. He indicated he was
trying to get his "VA stuff" taken care of and had
a lot of summer projects around the house. Tr. 470. He was
considering volunteer opportunities and he tried to work out
every day. Tr. 470. Reck had been a no show for physical
therapy. Tr. 470. He felt he did not need physical therapy;
he was doing his home exercises on daily basis and felt that
the physical therapy gym in Akron was too small and
claustrophobic. Tr. 470. Reck was willing to consider
vestibular rehabilitation but preferred to be seen at the
Wade Park location. Tr. 473. Reck denied any current suicidal
or homicidal ideations. Tr. 470. Reck was still having some
difficulty falling asleep but he was sleeping better through
the night. Tr. 470. He was still having painful headaches but
the number of headaches had decreased. Tr. 470. Reck felt
that amitriptyline was helping a little with his headaches
and staying busy and getting outside was helping. Tr. 470. On
physical examination, Reck was in no acute distress; his
range of motion and strength in his extremities was normal;
his gait was normal; he had diminished facial sensation to
light touch on the left side of his face; he swayed with
Romberg testing and exhibited loss of balance with tandem
Romberg testing but he could tandem walk, tiptoe, and heel
walk without difficulty; his attention was normal. Tr. 472.
Nurse Treiber increased the dosage of Reck's
amitriptyline and continued his prazosin. Tr. 473. She
stressed the importance of ongoing mental health treatment
and introduced him to Adam Wendt in the vestibular
rehabilitation department. Tr. 473. Reck also saw Dr. Ruff on
May 19, 2015. Tr. 602-603. Dr. Ruff referred to Nurse
Treiber's notes when indicating that Reck had made some
progress with his headaches. Tr. 602.
9, 2015, Reck saw Mr. Wendt for a physical therapy evaluation
concerning Reck's complaints of dizziness, imbalance and
some difficulty walking. Tr. 464-469, 597-602. Based on his
testing observations, Mr. Wendt noted that there was some
question as to whether Reck was giving his maximum effort
during testing. Tr. 597. Reck reported getting dizzy when
getting out of bed and driving. Tr. 465. He was having
episodes daily that lasted about 30 seconds to a couple of
minutes. Tr. 465. He also reported falling about once each
month, dropping things at times, and having a decreased grip.
Tr. 465. Reck did not use a cane for ambulation. Tr. 465.
Reck was independent in his activities of daily living. Tr.
465. Mr. Wendt recommended therapy once each week for a total
of six to eight sessions. Tr. 469. Reck attended one
additional therapy session with Mr. Wendt, which was on June
15, 2015. Tr. 463-464. During that session Mr. Wendt again
indicated that there was some question as to whether Reck was
giving his maximum effort, noting that Reck was able to show
significant improvement with balance with just some simple
education and instruction. Tr. 464. Reck cancelled a therapy
appointment with Mr. Wendt on June 30, 2015, and did not call
to reschedule the appointment. Tr. 463. As a result, on July
20, 2015, Mr. Wendt discharged Reck from physical therapy.
saw Dr. Frank Lingel at the VA on August 4, 2016, for a
primary care follow up. Tr. 590-592. It was noted that Reck
had not been seen since January 2015. Tr. 591. Reck had
intentionally lost weight; he was exercising regularly. Tr.
591. Reck's anxiety had improved with Celexa. Tr. 591.
Reck's headaches were unchanged. Tr. 591. He complained
of low back pain and he was having orthostatic symptoms
daily. Tr. 591. Dr. Lingel observed that Reck ambulated
without difficulty. Tr. 591. Dr. Lingel assessed orthostatic
hypotension, low basal bp; intentional weight loss; and
history of cervicalgia and low back pain. Tr. 592. Dr. Lingel
ordered labs, started Reck on a trial of fludrocortisone and
advised Reck to follow up in three to four weeks. Tr. 592.
September 23, 2016, x-ray of Reck's hips showed mild
narrowing of the left hip joint. Tr. 483. The right hip joint
was preserved. Tr. 483. Reck did not follow up with Dr.
Lingel following the August 4, 2016, visit because he was
traveling. Tr. 568. He saw Dr. Lingel again on October 4,
2016, for follow up regarding abdominal pain and groin pain.
Tr. 568. Reck reported continued lightheadedness. Tr. 568.
Reck did not feel that the fludrocortisone that Dr. Lingel
had prescribed for his orthostatic hypotension had been
effective. Tr. 568. Dr. Lingel noted that Reck ambulated
without difficulty. Tr. 568. An echocardiogram was performed
on October 14, 2016, for evaluation of Reck's orthostatic
hypotension. Tr. 505-507, 569. The echocardiogram showed the
left ventricular systolic function was low normal; the
ejection fraction estimate was 50-55%; and the right
ventricle was mildly dilated. Tr. 507. It was recommended
that a “Definity study” be considered for better
evaluation of the left ventricle function. Tr. 507.
VA benefit determination
April 10, 2015, the VA awarded benefits to Reck based on a
finding that Reck's PTSD with major depressive disorder
and residuals of traumatic brain injury was 100 percent
disabling. Tr. 201-220, 310-320.
rating decision, the VA explained that an evaluation of 100
percent is warranted under the mental disorders criteria
- Total occupation and social impairment
- Difficulty in adapting to a worklike setting
- Difficulty in adapting to stressful circumstances
- Near-continuous depression affecting the ability to
function independently, appropriately and effectively
- Difficulty in establishing and maintaining effective work
and social relationships
- Disturbances of motivation and mood
- Flattened affect
- Chronic sleep impairment
- Depressed mood
Tr. 315. The VA proceeded to explain that Reck's
“overall evidentiary record shows that the severity of
[his] disability most closely approximates the criteria for a
100 percent disability evaluation.” Tr. 315. Further,
the VA explained that there was a likelihood of improvement
with respect to the evaluation of PTSD with major depressive
disorder and residuals of traumatic brain injury, the
assigned evaluation was not considered permanent and was
subject to a future review examination. Tr. 316.
also found that each of the following conditions was 10
percent disabling: lumbar strain with degenerative disc
disease L5-S1; lumbar radiculopathy, left lower extremity
associated with lumbar strain and degenerative disc disease
L5-S1; and lumbar radiculopathy, right lower extremity
associated with lumbar strain with degenerative disc disease
L5-S1. Tr. 202.