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Van Wechel v. Colvin

United States District Court, D. North Dakota, Northwestern Division

March 25, 2014

Marc Van Wechel, Plaintiff,
Carolyn W. Colvin, Acting Commissioner Social Security, Defendant.


CHARLES S. MILLER, Jr., Magistrate Judge.

The plaintiff, Marc Van Wechel, seeks judicial review of the Social Security Commissioner's denial of his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433 ("Act"). The case was referred to the undersigned for final disposition by consent of the parties.


A. Procedural history

Van Wechel filed an application for disability insurance benefits on July 31, 2009, alleging he has been disabled and unable to work since March 3, 2009. (Tr. 10, 132-135). His applications were denied initially and upon reconsideration. (Tr. 70-72, 70-76). At his request, an administrative law judge ("ALJ") convened a review hearing on June 14, 2011. (Tr. 24-63, 78-100).

The ALJ issued his written opinion on August 18, 2011, concluding that Van Wechel was not disabled as defined by the applicable regulations and therefore not entitled to disability insurance benefits. (Tr. 10-19). Dissatisfied, Van Wechel appealed the ALJ's decision to the Appeals Council. (Tr. 121). Upon completion of its review, the Appeals Council denied Van Wechel's appeal and adopted the ALJ's decision as the Commissioner's final decision. (Tr. 1-6).

Van Wechel initiated the above-captioned action on November 21, 2011, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). (Doc. No. 1). He filed a Motion for Judgment on April 8, 2013. The Acting Commissioner subsequently filed her own Motion for Summary Judgment on May 3, 2013. (Doc. Nos. 10 & 16). Both motions have now been fully briefed and are ripe for the court's consideration.

B. General background

Van Wechel stands five feet, five inches tall. (Tr. 28). At the time of his administrative hearing he was 45 years old and weighed 187.9 pounds. (Tr. 29). He has obtained his GED. (Tr. 31). He has not engaged in substantial gainful activity since July 31, 2009, the alleged onset date of his disability. In the fifteen years preceding the alleged onset date, he worked as an equipment operator, a construction laborer, "locator technician, " tow truck operator, and yard hand. (Tr. 34-36, 156, 163, 186-209). Since the alleged onset date he has helped out on brother-in-law's farm. (Tr. 176, 211, 229).

Van Wechel suffers from obesity, asthma, allergies, and type 1 diabetes mellitus. He has also been diagnosed with chronic obstructive pulmonary disease ("COPD"). He takes two types of insulin, Humalog and Lantus, to manage his diabetes. To address his allergies and asthma, he uses an Albuterol inhaler as needed. He reportedly has lost grip strength and some dexterity in his hands following carpel tunnel surgery in February 2008. (Tr. 260). He has also complained of shoulder pain, facial pain, cramping in his hands, headaches, and fatigue. He has reported that his pain can last anywhere from a few hours to all day. (Tr. 227). For relief, he has relied primarily upon over-the-counter pain killers. (Tr. 228).

C. Medical Records

Van Wechel presented to the Meritcare Hospital's emergency room in Fargo, North Dakota, on May 26, 2008, after running out of Humalog. (Tr. 244). The examining physician wrote him a prescription and advised him to follow up with his regular doctor as needed. (Id.).

Van Wechel reported to the Merit Care walk-in clinic on August 21, 2008, to get his Humalog, Lantus, and Albuterol refilled. (Tr. 241-42). According to the treatment notes, he was irritable but did not appear to be in any distress. (Id.). He was given a weeks worth of his medications and advised to follow up with his primary care physician. (Tr. 242).

Van Wechel's medical records indicate that over the next three months he twice sought treatment at the Craven-Hagen Clinic in Williston, North Dakota. (Tr. 257). Specifically, they reveal that on October 1, 2008, he presented to the clinic with complaints of shortness of breath and a cough. (Tr. 258). They also reveal that he returned to the clinic on December 29, 2008, with similar complaints. (Tr. 259). On each occasion he was prescribed Advair and advised to continue using Albuterol as needed. (Tr. 258-59).

More than a year passed until Van Wechel again sought treatment, this time at the Tioga Medical Center. (Tr. 277). According to the center's records, he presented on April 7, 2010, because he had again run out of insulin. (Id.). A diabetic panel ordered by the attending physician revealed that his diabetes was not well controlled. (Tr. 27-74, 277).

On April 14, 2010, Van Wechel presented to Dr. Nuzhat un Nisa for his Social Security Determination Physical. (Tr. 260). He reported that he had quit working in March 2009 secondary to a problem with his insulin and work schedule, that his blood sugars "were tremendously high and uncontrolled, " and that he had multiple insulin reactions. (Id.). He also reported that his vision was progressively deteriorating, that he "gets short of breath very easily, " and that he had noticed a loss in grip strength following his for carpal tunnel surgery in February 2008. (Id.). He denied any numbness and tingling in his extremities. (Id.). On examination he exhibited full strength in his upper and lower extremities, normal reflexes, and a gait within normal limits. (Id.). He had some difficulty changing positions from sitting to standing but nevertheless was able to get on and off the examination table. (Id.). His grip strength was "40 in left hand and 30 in right hand" and he "was able to make fist and was comfortable holding a pencil and small objects." (Id.).

Van Wechel returned to the Tioga Medical Center on May 7, 2010. (Tr. 276). He reported that his blood glucose levels had been stable, that he was taking his medications, and that he had been working on diet and exercise. (Id.).

Van Wechel next returned to the Tioga Medical Center on June 30, 2010, to discuss smoking cessation. (Tr. 278). He was counseled and given a prescription for Chantix. (Id.).

Van Wechel next presented to the Tioga Medical Center on May 3, 2011, complaining that he had felt bloated for the past week and was experiencing shortness of breath. (Tr. 280-81). A CT scan of his abdomen revealed that he was suffering from significant constipation. (Tr. 280).

Van Wechel returned to the Tioga Medical Center on May 13, 2011, with continued complaints of a distended abdomen and shortness of breath. (Tr. 279). He also reported that his diabetes was out of control. (Id.).

Van Wechel presented to the Dr. Bilal Ahmed at the Mid Dakota Clinic on June 6, 2011. (Tr. 288). Based upon anecdotal evidence, Dr. Ahmed concluded that Van Wechel's blood sugar levels were fluctuating and low. (Tr. 289). In the process of reaching this conclusion Dr. Ahmed was careful to note that Van Wechel was "not very compliant with his diet" and was not adjusting his mealtime insulin according to his carbohydrate intake. (Id.). In addition to setting Van Wechel up to see educators, Dr. Ahmed appears to have referred him to a pulmonologist. (Id.).

Subsequent medical records appear to indicate that Van Wechel was examined by pulmonologist in the Fall of 2011.[1] Van Wechel followed up with Dr. Jeffrey Verhey, on April 2, 2012. (Tr. 293-95). According Dr. Verhey's clinical notes and correspondence, Van Wechel suffered from an Alpha 1-antitrypsin deficiency and COPD. (Tr. 293-94). He started Van Wechel on bronchodilators, including Symbicort. (Tr 294).

D. Other Evidence

Van Wechel's sister, Georgia Eklund, has reported that his diet is poor, his diabetes is getting worse, he has problems with his hands, and that ...

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