United States District Court, N.D. Ohio, Eastern Division
REPORT AND RECOMMENDATION
Jonathan D. Greenberg United States Magistrate Judge.
Charles Mendolera (“Plaintiff or
“Mendolera”), challenges the final decision of
Defendant, Andrew Saul,  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.
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.)
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.)
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
(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).
Personal and Vocational Evidence
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.)
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.” (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
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.)
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.)
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.)
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 and a cervical range of motion of 25% in
all directions. (Id.)
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
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
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 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.)
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
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
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 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.
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.)
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.)
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.)
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.
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
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.)
this examination, Dr. Elhaj noted that Mendolera exhibited
intermittent generalized dystonia,  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.)
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.)
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.)
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.)
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.)
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
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.)
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.)
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 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.
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 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
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.)
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 unchanged and
he had full strength. (Id. at 1160.)
December 30, 2016, Mendolera saw James Lane, M.D., for
complaints of dizziness, decreased vision in both eyes,
blurred vision, and photophobia. (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.” (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 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
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 ”
January 11, 2017, Mendolera saw Joseph Rudolph, M.D.
(Id. at 990.) At this visit, Mendolera reported the
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.)
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.(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, ” ...