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Tretheway v. Colvin

United States District Court, D. Nebraska

March 4, 2014

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


LYLE E. STROM, Senior District Judge.

This matter is before the Court on the appeal of plaintiff, Michael Tretheway ("Tretheway"), of a final decision by the Commissioner of the Social Security Administration ("SSA") denying Tretheway's application for disability benefits. The Court finds that the Administrative Law Judge ("ALJ") erred in assessing Dr. Zieno's opinion and will remand that matter for further consideration.


Tretheway filed an application for disability insurance benefits on January 30, 2012, and alleged disability beginning November 16, 2009 (Tr. 25). The SSA denied that application on February 21, 2012, and again on March 20, 2012 ( Id. ). After the ALJ hearing on August 8, 2012, the ALJ issued an unfavorable opinion on August 16, 2012 (Tr. 22, 25). The Appeals Council then denied Tretheway's request for review on February 22, 2013 (Filing No. 1, at 2, ¶ 6). Tretheway timely filed this appeal on April 3, 2013 ( Id. at 3, see 42 U.S.C. § 405(g)). The Court now reviews the ALJ's decision, which stands as the Commissioner's final decision.


Tretheway was a thirty-nine-year-old man on his onset date with a high school diploma. He worked in avionics and as a mail processor (Tr. 41-42). From July 1988 through March 1997, Tretheway served in the Marine Corps and in Operations Desert Shield, Desert Storm, and Eastern Exit (Tr. 502, 507, 447). Tretheway was honorably discharged (Tr. 500). Tretheway alleges disability due to neuropathy in his hands, post-traumatic stress disorder ("PTSD"), migraine headaches, and subluxation impingement syndrome (Filing No. 13, at 2).


In June 2010, Tretheway visited Dr. Agapito Lorenzo at the Veterans Affairs ("VA") hospital (Tr. 530). In that visit, Dr. Lorenzo assessed Tretheway with depression, migraines, hypertension, left shoulder pain, and bilateral weakness in the hands and feet (Tr. 533-34). In July 2010, Dr. Lorenzo reported that electrophysiological studies of Tretheway's upper extremities revealed no evidence of neuropathy (Tr. 530). However, Dr. Wariyar reported that the electromyography ("EMG") supported ordering Tretheway an elbow brace (Tr. 529). In August 2010, physical therapist Jan Nowling provided Tretheway with two tennis elbow straps after a diagnosis of bilateral lateral epicondylitis (Tr. 528, 514). In November 2010, Tretheway stated the tennis straps aided his extensor tendinitis (Tr. 527). He later admitted that he did not wear the straps (Tr. 514).

In February 2011, licensed practical nurse ("LPN") James McGary stated that Tretheway went to the VA with a primary complaint of tendinitis in bilateral hands. However, when asked the severity of his pain, Tretheway responded that his pain was zero on a ten scale (Tr. 516-17). On February 22, 2011, Tretheway returned to the VA with a complaint of bilateral arm pain (Tr. 514). Drs. Bonnema and Schumacher confirmed Tretheway had tendinitis through an EMG reading (Tr. 514).

On February 25, 2011, Drs. Bonnema and Schumacher assessed Tretheway with bilateral hand/wrist entensor tendinitis (Tr. 510). Specialists were unable to determine the etiology of the pain (Tr. 511). In March 2011, Tretheway reported that playing catch with children aggravated his condition (Tr. 493).

On April 4, 2011, Tretheway's occupational therapist reviewed Tretheway's treatment after eight visits in one month (Tr. 483-85). She stated that Tretheway was referred to her for tendinitis but that she also focused on the possibility of radial tunnel syndrome (Tr. 484). On April 8, 2011, Tretheway met with Dr. Schumacker and physical therapist Lisa Gross to discuss further treatment (Tr. 477-79).

On June 10, 2011, Drs. Schumacher and Bonnema had a followup with Tretheway regarding his bilateral numbness and weakness of the arms and hands (Tr. 440). The EMG displayed no evidence of neuropathy and labs were "unremarkable." The doctors scheduled Tretheway for an evaluation of his neck and thorax.

Dr. Bonnema contacted Tretheway on July 1, 2011, to discuss his labs for his bilateral hand numbness (Tr. 431). The doctor stated that physical therapy evaluation and labs were not helpful. The doctor did not know how to proceed but would explore the differential.

On July 6, 2011, physical therapist Gross and Dr. Bonnema suggested that a vascular surgeon assess whether Tretheway should undergo surgery in order to alleviate his bilateral stress (Tr. 429). On July 22, 2011, LPN McGary examined Tretheway for a followup on his bilateral hand pain (Tr. 422-24). Tretheway noted his pain was a zero on a ten scale (Tr. 422).


The earliest of Tretheway's medical records from the VA begins in 2004, prior to Tretheway's alleged onset but related to Tretheway's PTSD (Tr. 500). Dr. James Mathisen made the following statements in his Compensation and Pension evaluation ("C&P"). Tretheway reported there was a mid-air collision involving a helicopter in 1996 for which Tretheway had felt responsible because he had inspected the helicopter. Tretheway said he had known the crew chief and the aerial observer but failed to recall their names (Tr. 501). Tretheway also reported that in September of 1995 and March of 1997, two of his friends committed suicide. Dr. Mathisen stated the suicides could vicariously meet A criteria PTSD.

Dr. Mathisen determined that Tretheway did not exhibit intrusive memories, thoughts, or images of stressful military experiences as related to the reported suicides. Tretheway dreamt bimonthly about a friend who committed suicide. He denied having flashbacks or reminders of suicide. Tretheway reported that with the nightmares he has sweating at a minimal level. This would meet B criteria PTSD but he did not exhibit any C criteria PTSD. Tretheway reported that he was quite able to talk about the suicide or other military events.

Dr. Mathisen assessed Tretheway did not have PTSD, by any criteria, but instead had depression. Dr. Mathisen saw no problems with concentration or anger and stated that Tretheway was not easily startled. Dr. Mathisen also reported regular activities for Tretheway (Tr. 502). The doctor stated that Tretheway's symptom reporting was not consistent with his behavior, which called into question those sub-threshold PTSD symptoms that he did report. Also, Dr. Mathisen questioned whether Tretheway's issues were military-connected because Tretheway did not complain of these issues until four years after he separated from the Marine Corps. Dr. Mathisen attributed Tretheway's absences from work to complications with his wife's pregnancy and problems at the Post Office. Dr. Mathisen believed that Tretheway's depressive condition would have a mild impact overall upon maintaining gainful employment.

Sometime in the beginning of 2009, Tretheway skipped work for two months due to stress (Tr. 572). In March 2010, physician's assistant Brandy Reineke noted that Tretheway's conditions led to increased absenteeism, including missing four months within the last year (Tr. 550-51).

In March 2011, Mrs. Tretheway spoke about her husband's condition to Drs. Babuji Gandra and Praveen Fernandes (Tr. 506). She said Tretheway would become violent and aggressive during his sleep, which started in 1997 after returned from Marine Corps, but worsened in the last three years (Tr. 506). She also mentioned that a couple of months ago he tried to choke his son while asleep, and the next morning he did not recall. The violence was not specifically related to any time or stress, but he recently began hitting the walls or running in the hallways. Tretheway denied memory of those things.

According to Tretheway, he would dream about his time in the Marine Corps and then wake up suddenly in a sweat. Tretheway was never hospitalized for his mental conditions (Tr. 507). The doctors assessed Tretheway as having violent behavior and aggression during sleep, some symptoms of PTSD. Drs. Gandra and Fernandes did not make a diagnoses of PTSD or bipolar disorder at that time.

In March 2011, Dr. Terry North noted Tretheway supplemented his list of traumas; he helped to evacuate embassy personnel from Somalia in 1992.[1] He reported that during that operation, the helicopter they were in received small arms fire and that he witnessed several people getting shot. This was the first time Tretheway mentioned this incident.

Tretheway then completed the PCL-C, PTSD Checklist, in reference to this event and he scored 64 which is above the threshold considered suggestive of a PTSD diagnosis (Tr. 503). Also, Tretheway recalled dreaming of trying to help others escape a dangerous situation and also trying to escape a dangerous situation. Tretheway stated that he thought about this situation almost every day, along with the other stressful, traumatic events, and that he avoided thinking and talking about this event. Due to the incident in Somalia, which Tretheway had never before mentioned, Dr. North believed that Tretheway met the criteria for a PTSD diagnosis and review of the veteran's responses to the PCL-C. Tretheway's PTSD treatment included admittance to the PTSD Treatment Program, medication, and counseling (Tr. 498).

Tretheway attended PTSD therapy regularly from March 2011 through his diagnosis in February 2012 (Tr. 369, 376, 378-81, 391, 417, 425-27, 429, 432, 434, 440-42, 460, 462, 474, 480-82, 488, 496). On August 8, 2011, Tretheway mentioned he began repairing bicycles in the neighborhood (Tr. 415). On August 18, 2011, during PTSD treatment, Tretheway expressed anger at his psychiatrist for the exposure therapy in his last session (Tr. 383). On August 30, 2011, Tretheway missed his psychiatric appointment (Tr. 382). Drs. Angelo Zieno and Fernandes wrote that they did not perform exposure therapy, but offered it as a suggestion for the future (Tr. 382).

On October 20, 2011, Tretheway announced to his PTSD Treatment group that he gained 100% unemployability from the VA (Tr. 374). On November 10, 2010, Tretheway moved to his new home and attended PTSD treatment (Tr. 372). That day, Dr. Willcockson suggested a diagnosis of PTSD for Tretheway (Tr. 370-71).

On February 3, 2012, Tretheway announced that he was on the Dean's List for last semester's grades and considered pursuing SSDI (Tr. 368). On March 2, 2012, Tretheway told his class that his wife was encouraging him to quit school in order to qualify for SSDI (Tr. 630). The group and Dr. Willcockson discouraged such advice. On May 11, 2012, Tretheway again mentioned his ...

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