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Mendolera v. Commissioner of Social Security

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

December 4, 2019


          SARA LIOI, JUDGE.


          Jonathan D. Greenberg United States Magistrate Judge.

         Plaintiff, Charles Mendolera (“Plaintiff or “Mendolera”), challenges the final decision of Defendant, Andrew Saul, [1] Commissioner of Social Security (“Commissioner”), denying his applications for a Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be AFFIRMED.


         On September 1, 2015, Mendolera filed an application for POD, DIB, and SSI, alleging a disability onset date of August 28, 2015 and claiming he was disabled due to “spinal stenosis, pinch [sic] nerve, spinal cord, broken neck, cervical myelopathy, and muscle spams [sic].” (Transcript (“Tr.”) 10, 324.) The applications were denied initially and upon reconsideration, and Mendolera requested a hearing before an administrative law judge (“ALJ”). (Id. at 10.)

         On October 3, 2017, an ALJ held a hearing, during which Mendolera, represented by counsel, testified. (Id.) The ALJ “wanted updated evidence regarding [Mendolera's] vision problems and updated medical treatment records.” (Id.) On March 6, 2018, the ALJ held a supplemental hearing, during which Mendolera and an impartial vocational expert (“VE”) testified. (Id.) On April 11, 2018, the ALJ issued a written decision finding Mendolera was not disabled. (Id. at 10-21.) The ALJ's decision became final on September 7, 2018, when the Appeals Council declined further review. (Id. at 1-6.)

         On November 12, 2018, Mendolera filed his Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 13, 16, 18.) Mendolera asserts the following assignments of error:

(1) The ALJ committed an error of law and the decision is not supported by substantial evidence as the ALJ failed to properly consider [Mendolera's] psychological conditions and resulting symptoms as severe impairments at Step Two of the sequential evaluation.
(2) The ALJ erred by not following the requirements of SSR 96-8p when making the RFC determination, and the RFC determination is not supported by substantial evidence.

(Doc. No. 13) (capitalization corrected).

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Mendolera was born in November 1974 and was 43 years-old at the time of his supplemental administrative hearing (Tr. 36, 111), making him a “younger” person under Social Security regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c). He has a college education and is able to communicate in English. (Id. at 323-25.) He has past relevant work as a Mortgage Loan Originator, Inventory Clerk, General Hardware Sales, Telephone Sales Representative, and Advertising Sales Representative. (Id. at 21.)

         B. Medical Evidence[2]

         In June 2014, Mendolera fell and hit his head on an asphalt driveway while running away from a swarm of bees after accidentally running over their nest. (Tr. 1142, 442.) An MRI taken immediately after Mendolera's accident indicated “focal myelomalacia within the cord on the right and left side corresponding to areas of uncovertebral hypertrophy at ¶ 5-6 presumably from prior insult or injury.”[3] (Id. at 412-13.) The imaging also revealed “multilevel degenerative changes of the cervical spine superimposed on a background of congenital canal stenosis.” (Id. at 413.) There was “no acute or worrisome process involving the cervical spine.” (Id.)

         On July 24, 2014, Mendolera went to the ER complaining of bilateral neck and shoulder pain and an itchy feeling in a “bilateral sleeve-like distribution to just below elbows since accident.” (Id. at 452.) The treatment notes reflect that Mendolera's MRI showed “a moderate herniation at ¶ 3-C4 and lesser herniation and stenosis at ¶ 5, C6 and C7.” (Id. at 453.) Mendolera told his provider that, with respect to C5, the issues related to a previous cervical fracture from years ago. (Id.) A physical examination revealed that Mendolera was in no apparent distress, had a normal gait, and had 5/5 strength in all muscle groups. (Id.) Positive examination findings included pain to palpation in the spinous process and the paraspinals. (Id.) The treatment plan consisted of a pain management consult with Dr. Leizman. (Id.) The treatment notes state that surgery for Mendolera's herniated disc at ¶ 3 may be considered if his symptoms worsenend or persisted. (Id.)

         On August 6, 2014, Mendolera saw Daniel Leizman, M.D., at the Cleveland Clinic's Pain Management Center complaining of continued neck pain since his initial injury in June. (Id. at 517.) Mendolera described his pain as aching, burning, numbness, sharp, throbbing, and tingling. (Id.) He told Dr. Leizman he had weakness, numbness, tingling particularly in both arms, but also a little in his legs sometimes. (Id.) Mendolera stated the pain was aggravated by lifting and lying down. (Id.) Mendolera could not identify any positions or factors that mitigated his pain. (Id.)

         Dr. Leizman noted that the June 2014 MRI revealed straightening of the cervical lordosis with endplate changes and disc herniation located from C3-4 and disc bulging at ¶ 5-6 and C6-7. (Id. at 518.) On examination, Dr. Leizman found Mendolera had “significant neck swelling” and “pain to palpation over the cervical paraspinous and trapezius muscles.” (Id. at 520.) Mendolera's range of motion in his neck was moderately decreased and had pain with flexion, extension, and lateral flexion. (Id.) Mendolera had full, pain free range of motion in his peripheral joints. (Id.) Dr. Leizman prescribed a Medrol dose pack, Gabapentin, and physical therapy. (Id. at 521.)

         On August 19, 2014, Mendolera met with Inna Keselman, DPT, OCS, for an initial physical therapy evaluation. (Id. at 511.) Mendolera complained of pain over the central aspect of his neck, bilateral numbness and tingling in his shoulders and upper arms, and occasional bilateral foot numbness. (Id.) A physical examination revealed decreased cervical lordosis[4] and a cervical range of motion of 25% in all directions. (Id.)

         On September 2, 2014, Mendolera met with Dr. Teresa Ruch, who had seen him years ago for a cervical fracture, for a second opinion. (Id. at 454.) Mendolera complained of “terrible neck pain, ” “some pain in his left shoulder, ” and “numbness and tingling in his fingers and toes.” (Id.) A physical examination revealed normal gait and motor strength, intact pinprick sensation, and symmetrical reflexes. (Id. at 455.) Dr. Ruch noted: “MRI scan shows he is 3 for huge disc herniation with spinal cord [] impingement. He also has 56 changes from his fracture that he had years ago with cord contusion. I told him he could continue his physical therapy but most likely he is going to need to have a 3 for disc done . . . It will need to be done at some time in the future pain [sic] especially if he develops any permanent deficits.” (Id.)

         On October 20, 2014, Mendolera saw Sharif Salama, M.D., for pain management. (Id. at 400.) Mendolera complained of severe pain in the back of his neck, pain between his shoulder blades, tingling in his hands and feet bilaterally, and itching and tingling bilaterally from his shoulders to his elbows. (Id.) While the pain reduced Mendolera's ability to lay in certain positions and turn his head far left or far right, he had no sleep limitations. (Id.) Mendolera rated his pain as 5/10 but stated the tingling and itching had improved since his last visit. (Id.) A physical examination revealed Mendolera was mildly distressed because of his pain, he had moderate tenderness bilaterally at the lower cervical facet, and his cervical spine range of motion was reduced and painful. (Id. at 401-02.) Dr. Salama's notes reflect diagnoses of cervicalgia, cervical spine stenosis, displacement of cervical intervertebral discs without myelopathy, bilateral arm pain, and radiculitis. (Id. at 402.) Dr. Salama prescribed Neurontin and Trazodone. (Id.)

         On November 3, 2014, Mendolera saw Dr. Ruch complaining of neck pain. (Id. at 442.) Mendolera described the pain as constant, throbbing, achy, burning, and occasionally sharp, and it radiated into both shoulders. (Id.) He also complained of occasional numbness and tingling in his hands and feet. (Id.) Dr. Ruch noted that Mendolera was scheduled for an anterior cervical discectomy at ¶ 3 and a partial corpectomy on November 12, 2014. (Id.) Dr. Ruch diagnosed Mendolera with cervical spondylosis[5] with myelopathy. (Id.) Dr. Ruch's examination revealed Mendolera could move all extremities, he had a normal gait, and he had 5/5 grip strength bilaterally. (Id. at 444.)

         On November 12, 2014, Mendolera underwent a C3-C4 partial corpectomy, PEEK cage placement and Atlantis plating from C4 through C6, including a partial corpectomy at these vertebral junctions, and the placement of a PEEK cage and Atlantis plate spanning C3 and C6. (Id. at 445-46.) Dr. Ruch, who performed the procedure, noted Mendolera “was found to have a 3, 4 disk osteophyte complex compressing the spinal cord and myelomalacia at ¶ 5-6, which was extensive and [sic] pressure on the spinal cord.” (Id. at 445.)

         On December 30, 2014, Mendolera attended a post-surgery follow up appointment and he was doing well. (Id. at 457.) He no longer had arm pain but was still experiencing tingling in his hands and feet. (Id.) He also complained of itching and posterior neck pain, as well as difficulty with his range of motion in his neck. (Id.) On examination, Mendolera exhibited 5/5 motor strength in his upper and lower extremities, intact sensation to light touch, and some swelling between the incision and drain site. (Id.) Jill Sciko, PA-C, prescribed physical therapy for range of motion and strengthening, as well as refills for Percocet, Gabapentin, and Trazodone. (Id. at 457-58.)

         On January 14, 2015, Mendolera attended an initial evaluation for physical therapy with DPT Keselman. (Id. at 506.) Mendolera complained of intermittent pain that he rated at 7/10, controlled with Oxycodone, as well as bilateral paresthesia[6] and itching in his hands. (Id.) On examination, Keselman found Mendolera's cervical range of motion limited at 25% in all directions except for extension, which was limited at 10% of normal. (Id.) Keselman noted Mendolera was “apprehensive” of cervical range of motion, and her examination findings were “consistent with expected limited cervical ROM, poor posture, decreased postural awareness and decreased strength.” (Id.) Mendolera was to follow up with Keselman one to two times a week for six to eight weeks. (Id.)

         On June 30, 2015, Mendolera reported he was doing better but was experiencing muscle spasms in his neck, arms, and legs. (Id. at 464.) A physical examination revealed full strength in Mendolera's upper and lower extremities. (Id.) Treatment providers prescribed Baclofen for Mendolera to try. (Id.)

         On August 18, 2015, Mendolera called his doctor's office complaining of muscle spasms and asking whether that was normal since he had surgery in November of last year. (Id. at 552.) Mendolera reported twitching and spasms in his entire body. (Id. at 553.) It was recommended Mendolera see a neurologist. (Id.)

         On September 1, 2015, Mendolera again called his doctor's office complaining of spasms “that could be anywhere, ” including his legs, biceps, chest, or arms. (Id. at 552.) John Sternen, PA-C, noted Mendolera had seen Dr. Dashefsky the week before. (Id.) Dr. Dashefsky prescribed Baclofen, starting at 20 mg in an increasing scale. (Id.) PA-C Sternen told Mendolera that, from their perspective, Baclofen was the only drug available to treat such tremors, and that Mendolera should follow up with neurology for further treatmnet. (Id.) PA-C Sternen also informed Mendolera that the spasms could be the result of the damage to his spinal cord, the damage could take months to heal, and some symptoms could be permanent. (Id.)

         On September 9, 2015, Mendolera once again saw DPT Keselman for an initial evaluation for physical therapy. (Id. at 500.) Mendolera complained of persistent spasm and twitching that started shortly after his cervical fusion in January 2015. (Id.) Keselman noted Mendolera “[f]ailed to follow instructions for Baclofen dose gradation. Had increased dosage from 10 mg/day to 60 mg/day on day 3 of prescription. States Baclofen has been ineffective.” (Id.) Mendolera told Keselman he had no pain at that time except for occasional pain following an intense twitch in his neck, and that he felt the constant need to move as his spasms and twitches occurred more in static positions. (Id.) On examination, Keselman found Mendolera's cervical range of motion slightly limited in all directions. (Id.) She noted he had discontinued his previous physical therapy program because he said he had felt better exercising. (Id.) She recommended Mendolera undergo physical therapy twice a week for four to six weeks. (Id.)

         On September 25, 2015, Mendolera called his doctor's office complaining of chronic spasms and that Baclofen was not helping. (Id. at 545.) Megan Gritsik, PA-C, recommended Mendolera follow up with Dr. Dashefsky to see if there was anything else he could recommend. (Id. at 546.)

         On October 2, 2015, Mendolera called to ask his primary care provider, Vincent Dalessasndro, D.O., for a referral to a psychiatrist. (Id. at 545.) In November 2015, Mendolera saw Omar Elhaj, M.D., for an initial assessment. (Id. at 565.) Dr. Elhaj diagnosed Mendolera with generalized anxiety disorder, major depressive disorder (single episode, moderate), and alcohol abuse. (Id.) Mendolera complained of a depressed mood, low motivation, low self-esteem, difficulty with concentration, anxiety, excessive worrying, expecting worst-case scenarios, restlessness, and racing thoughts. (Id.) At that time, Mendolera rated his anxiety at 7/10 and his depression at 5/10. (Id.) Mendolera told Dr. Elhaj he had a decreased appetite and low energy. (Id.) He slept 3-4 hours a night, but his sleep was fine. (Id.) Mendolera also told Dr. Elhaj he was looking for employment opportunities. (Id. at 566.)

         During this examination, Dr. Elhaj noted that Mendolera exhibited intermittent generalized dystonia, [7] a cooperative attitude, restless behavior, and an anxious and depressed mood. (Id. at 567.) Dr. Elhaj assessed Mendolera as worsening and prescribed Mirtazapine to address Mendolera's insomnia, depression, and anxiety. (Id.) Dr. Elhaj also instructed Mendolera to abstain from alcohol for two weeks. (Id.)

         On October 27, 2015, Mendolera saw neurologist David Riley, M.D., for a consultation. (Id. at 583.) Mendolera told Dr. Riley that while he still had pain, it had improved and was now “way less;” he was not taking pain medications. (Id.) His neck only hurt when he got a spasm and his neck twitched. (Id.) The spasms began in early 2015 after he stopped taking narcotics. (Id.) When a spasm occurs, his legs squeeze together, his chest tightens, and his neck twitches. (Id.) Sometimes the spasms occurred in one area in isolation, but often they occurred in all three areas at once. (Id. at 584.) He started taking Keppra a month ago for his spasms; it helped somewhat but did not stop the spasms. (Id.) He would take a Keppra pill when he “started twitching real bad.” (Id.) Dr. Riley noted that shortly after Mendolera came into the exam room and sat down, he had to stand up and spent most of the time pacing the room, during which he had no spasms. (Id.) Mendolera told Dr. Riley he felt better if he was moving. (Id.)

         On examination, Dr. Riley noted intermittent myoclonic spasms while Mendolera was sitting or lying on his back. (Id.) The spasms were “often generalized with adduction of legs and arms, and simultaneous head jerk, ” as well as “occasional] single shoulder shrug; sometimes a shuddering shake of an arm.” (Id.) The spasms occurred approximately once per minute during the exam, but not while Mendolera was performing tasks. (Id.) When Mendolera was laying down, Dr. Riley noted “myoclonic spasms of synchronous adduction and internal rotation of both legs.” (Id.) Dr. Riley also found “[h]igh-frequency, low-amplitude postural and kinetic tremor of both upper limbs, ” “[s]light rapid head tremor when examining eyes, but not when writing, ” “[a]bsent ankle jerks, ” a normal gait, mild tremor in his left hand but no tremor on the right, and no myoclonic spasms at all while writing and drawing. (Id. at 585.)

         Dr. Riley suspected Mendolera had a “functional/psychogenic movement disorder, on the basis of incongruity of his movement disorder with any known ‘organic' disorder, and inconsistencies.” (Id.) Dr. Riley noted, “The good news is that there is no detectable permanent damage to the nervous system, so a complete recovery is possible.” (Id.) But Dr. Riley described the long-term prognosis as guarded, as the “longer these disorders persist, the more they seem to become entrenched.” (Id.) Dr. Riley recommended Mendolera take Keppra in larger doses prophylactically, instead of in response to the spasms. (Id. at 586.) He also suggested Mendolera focus on finding a job within his limitations, or improving his situation so he could get a job, but Mendolera's attitude at that time was that there was no point in trying and he would just get fired. (Id.)

         On November 23, 2015, Mendolera saw Jason Wolf, M.D., for an evaluation of his elevated liver function tests. (Id. at 665-66.) Dr. Wolf noted Keppra had helped Mendolera's tremors “significantly.” (Id. at 666.)

         On November 30, 2015, Mendolera again saw Dr. Elhaj and told him he was ready to look for a job. (Id. at 574.) Dr. Elhaj noted Mendolera had no dystonia at all that day. (Id.) Mendolera exhibited a cooperative attitude, anxious mood, fair insight, fair judgment, and normal thought process. (Id.) Dr. Elhaj found Mendolera was improving but increased the dosage of Mirtazapine to address Mendolera's “residual” symptoms. (Id.) Dr. Elhaj determined that Mendolera's “alcohol use, albeit less than before, continues to affect his [symptoms] and response to rx. Therapy focused on managing expectations. Fair response to therapeutic intervention.” (Id.)

         On December 1, 2015, Mendolera saw Dr. Dalessandro for evaluation of his tremors and elevated liver tests. (Id. at 589.) Dr. Dalessandro noted that Mendolera reported tremors and focal weakness, but no dizziness, tingling, or sensory change. (Id.) Mendolera denied being depressed, having suicidal thoughts, memory loss, nervousness, anxiety, and insomnia. (Id.) On examination, Dr. Dalessandro found Mendolera had a normal range of motion, no edema or tenderness, normal strength, normal gait, and no Babinski's sign on the right or left. (Id. at 591.) Dr. Dalessandro recommended Mendolera continue with his current therapy but told him he could not lift any objects greater than five pounds given his history of spinal cord injury. (Id.)

         In June 2016, Mendolera saw neurologist Dr. Joseph Rudolph for evaluation of his tremors. (Id. at 636.) Mendolera reported he had been experiencing tremors for about two years and began after his pain medicine was discontinued. (Id.) Mendolera described muscle spasms, neck twitches, and tremorous shakes, with the neck twitch being more of a “violent jerk that triggers pain and throbbing for the rest of the day.” (Id.) “Sometimes his body pulls everything to the middle - folding in half almost. At baseline, his hands and feet can have tingling, and sometimes there is stronger shooting pain in the neck and arms -bumping his head or overexertion exacerbates this.” (Id.) Since being at rest makes the tremors worse, he gets up and paces. (Id. at 637.) Mendolera reported he has lost strength as most activities make his pain worse. (Id.) Mendolera told Dr. Rudolph that an increased dose of Keppra helped his tremors. (Id.) On examination, Dr. Rudolph found limited neck range of motion, normal motor bulk and strength, intact sensation to light touch, pin prick, and vibration, finger-to-nose-finger intact bilaterally with noticeable shakiness, and normal gait and posture. (Id. at 638.) Dr. Rudolph noted, with respect to Mendolera's reflexes, there was significant withdrawal and upgoing toes. (Id.) Dr. Rudolph prescribed clonazepam and Lyrica and continued Keppra. (Id.)

         On November 11, 2016, Mendolera saw Riad Laham, M.D., at the Cleveland Clinic Pain Management Department for a consultation. (Id. at 679.) Mendolera complained of chronic lower back, neck, bilateral upper arm, and lower right leg pain. (Id.) Mendolera told Dr. Laham he was unable to work because of his neck pain and twitching in addition to his back and right lower leg pain. (Id.) Mendolera rated his neck pain at 8/10. (Id.) He told Dr. Laham his neck spasms had not responded to Baclofen and was currently on Keppra “with little relief.” (Id.) On examination, Dr. Laham found Mendolera had a good range of motion in his neck and back, no pain to palpation of the lumbar spine, negative straight leg raise test bilaterally, and 5/5 motor strength and tone throughout. (Id. at 681-82.) Dr. Laham diagnosed Mendolera as suffering from cervical post-laminectomy syndrome, radicular syndrome of the right lower extremity, cervicalgia, myoclonus[8] dystonia, and cervical radicular pain. (Id. at 683.) Dr. Laham prescribed Zanaflex and Flexeril and told Mendolera to add over-the-counter non-steroidal anti-inflammatory drugs to his medication regimen. (Id. at 684.) As Mendolera could not afford physical therapy at that time, Dr. Laham recommended home exercise and swimming. (Id.) Mendolera could try epidural steroid injections if his symptoms did not improve. (Id.)

         On December 24, 2016, Mendolera saw Dr. Dashefsky for a neurological consultation regarding his abnormal eye movements. (Id. at 1145.) Mendolera complained of “jumpy vision” and “intermittent double vision” that began when he was watching TV on December 23, 2016. (Id.) Since then, he had been nauseous and having problems with his balance. (Id.) Dr. Dashefsky noted that Dr. Riley, “a movement disorder specialist, ” had diagnosed Mendolera with a functional movement disorder (per Mendolera) but Mendolera had more recently been treated by neurologist Dr. Rudolph, who diagnosed him with spinal myoclonus. (Id. at 1145-46.) On examination, Dr. Dashefsky noted no motor tremor or myoclonus, full strength, and poor hygiene. (Id. at 1148.) Dr. Dashefsky diagnosed opsoclonus[9] and myoclonus, etiology uncertain, and recommended an MRIMRA of the brain and neck to rule out a structural lesion. (Id. at 1145.) Dr. Dashefsky reduced Mendolera's Keppra and Gabapentin doses and ordered thiamine and paraneoplastic antibodies. (Id.)

         On December 26, 2016, Mendolera was admitted to the hospital for dizziness, imbalance, and nausea. (Id. at 691.) Dr. Dashefsky noted abnormal eye movements, “imbalance slowly improving in association with thiamine, correction hyponatremia and reduction of Keppra and Gabapentin doses.” (Id. at 1154.) He also found Mendolera's myoclonus and tremor “essentially resolved this admission.” (Id.) Mendolera complained of difficulty seeing and being “off balance.” (Id.) Dr. Dashefsky wrote:

The patient admits to eating poorly the few weeks prior to admission as “I had no appetite”. [sic] He admits to drinking between one and two case [sic] of beer per week. His father states that he looked around his apartment and there is evidence that he is drinking heavily. In addition, the father spoke to one of the patient's friends and he has been drinking three to four cases of beer per week.

(Id.) On examination, Dr. Dashefsky found “[r]apid eye movements in all directions of gaze persist but continue to be less prominent. EOMS full without apparent limitation of lateral gaze . . . No. tremor or involuntary movements noted.” (Id. at 1156.)

         On December 27, 2016, Mendolera still had jumpy vision and imbalance, but had no headache, double vision, focal weakness, or sensory symptoms. (Id. at 1158.) His Keppra dose was low, and his thiamine and Gabapentin levels were “pending.” (Id.) On examination, Dr. Dashefsky found Mendolera's nystagmus[10] unchanged and he had full strength. (Id. at 1160.)

         On December 30, 2016, Mendolera saw James Lane, M.D., for complaints of dizziness, decreased vision in both eyes, blurred vision, and photophobia.[11] (Id. at 691.) Mendolera reported feeling a little bit better but his vision was still very blurred. (Id.) Dr. Lane noted, “Since onset vertigo, patient has had vertical nystagmus.”[12] (Id.) Mendolera reported being unable to look at objects “without feeling uneasy” and being very light sensitive. (Id.) Mendolera told Dr. Lane “no matter what he looks at (people or objects) are fluttering and moving up and down, ” he was unable “to function without getting dizzy, ” and while his diplopia[13] was better, he still could not accomplish his daily tasks without difficulty. (Id.) Dr. Lane diagnosed Mendolera with vertical nystagmus, nuclear sclerosis, disorder of refraction, and diabetes without diabetic neuropathy. (Id. at 693-94.) Dr. Lane noted Mendolera reported “his eye movements have improved over the past week (during which he received Thiamine). Motility disturbance and overall clinical picture consistent with diagnosis of Wernicke's.”[14] (Id.)

         On January 4, 2017, Hillcrest Hospital transferred Mendolera to Brookdale Westlake skilled nursing facility. (Id. at 695.) On admission, Mendolera told his treatment providers that he was unable to read a menu or watch TV due to the disturbance in his vision. (Id. at 856.) On January 5, 2017, treatment providers at Brookdale Westlake listed Mendolera's primary diagnosis as “[s]uspected Wernicke ophthalmoplegia secondary to excessive alcohol intake, ” with secondary diagnoses of “diabetes mellitus, hypertension, anxiety depressive disorder, and history of alcohol abuse.” (Id. at 848.) Mendolera told his providers that his vision was improving somewhat but he was still having difficulty with his balance. (Id.) On January 6, 2017, Mendolera reported “continuing visual disturbances of objects ‘moving up and down'” but denied double vision. (Id. at 861.) He stated his vision was improving but he still could not read. (Id.) Providers assessed Mendolera as having benign prostatic hypertrophy, dizziness, diplopia, diabetes, alcohol abuse, and gait instability. (Id.) On January 7, 2017, treatment providers noted Mendolera was “currently having vision problems and [could] not focus well, ” but he “like[d] to use the iPads, visit family, listen to music, and play cards.” (Id. at 858.) On January 9, 2017, Mendolera again reported that he continued to have “visual disturbance described as things jumping up and down” but again denied double vision. (Id. at 862.) Mendolera told his treatment providers his vision had improved since his hospitalization, but he was still unable to read. (Id.) His dizziness had decreased, he was more stable on his feet, and he was walking independently without falls, but his visual disturbance affected his equilibrium “a little bit.” (Id.) Mendolera could not see the numbers on his cell phone to place a call, read the screen on his Accucheck machine, or see the markings on an insulin pen. (Id. at 859.) No. “s/s alcohol withdrawal noted ” (Id.)

         On January 11, 2017, Mendolera saw Joseph Rudolph, M.D. (Id. at 990.) At this visit, Mendolera reported the following:

1) The jerkiness and the pain have slowed down. Both are still present, but the movements are mostly subsided. This (reduction in the movement frequency) helps with the pain; overall, the pain can still be severe. The pain is present in the neck, hands, feet, and shoulders. The pain is different all over In the limbs he has tingling, the neck and shoulders have variable pains, aching and others. The sciatic area hurts severely on the R side.
2) Two weeks ago (Dec 24), while he was watching television, the vision began to jerk and bounce vertically - this actually began with double vision. This was accompanied with nausea and dizziness. By “dizzy” he means the unsettling feeling he felt at looking at moving objects. He was confused a little at the time saying things he did not recall, or remembering incorrectly what he HAD said. He was also disoriented. This has progressively gotten better. Perhaps his twitching and pain actually improved in the hospital! He also enjoyed the physical therapy.

(Id. at 990-91.)

         Dr. Rudolph reiterated that Mendolera's twitching appeared to have improved somewhat while he was in the hospital for vertigo and noted that Keppra, which he takes for the spasms, has a small percentage (3-5%) of causing vertigo. (Id. at 991.) Alternatively, he may have had a viral infection with labyrinthitis.[15](Id.) Dr. Rudolph noted Cymbalta was added to Mendolera's medication regimen in the hospital and may have contributed to the improvement in his twitching and pain. (Id.) Mendolera could continue the Cymbalta and may benefit from a higher dose. (Id.) Dr. Rudolph recommended an MRI of Mendolera's “L-spine, ” ...

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