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Reck v. Commissioner of Social Security

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

May 1, 2018

CALEB J. RECK, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION & ORDER

          Kathleen B. Burke United States Magistrate Judge

         Plaintiff 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 Commissioner's decision.

         I. Procedural History

         Reck protectively filed an application for Disability Insurance Benefits (“DIB”) on March 26, 2015.[1] 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. Tr. 108-109.

         On 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.

         II. Evidence

         A. Personal, vocational and educational evidence

         Reck 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.

         Reck's 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. 36-37.

         B. Medical evidence

         1.Treatment history

         In 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. 445.

         Reck's 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.

         On 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.

         On 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.

         Reck 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.

         On 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.

         On 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. Tr. 410.

         On 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.

         X-rays 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.

         Reck 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.

         Reck 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.

         On May 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.

         On June 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. Tr. 463.

         Reck 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.

         A 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.

         2.Opinion evidence

         a. VA benefit determination

         On 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.

         In its rating decision, the VA explained that an evaluation of 100 percent is warranted under the mental disorders criteria based on:

- 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
- Anxiety
- 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.

         The VA 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.

         b. ...


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