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Wolf v. Colvin

United States District Court, D. North Dakota

April 13, 2016

Jason E. Wolf, Plaintiff,
Carolyn W. Colvin, Acting Social Security Administration Commissioner, Defendant.


Charles S. Miller, Jr., Magistrate Judge

The plaintiff, Jason E. Wolf (“Wolf”), seeks judicial review of the Social Security Commissioner’s denial of his application for Social Security Disability Insurance Benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401-434. This court reviews the Commissioner’s final decision pursuant to 42 U.S.C. § 405(g).


A. Procedural history

Wolf filed an application for Social Security Disability Insurance Benefits (“DIB”) on March 12, 2012, alleging an onset date of September 9, 2011. (Tr. 170-176). His application was denied initially and upon reconsideration. (Tr. 110-116).

An Administrative Law Judge (“ALJ”) convened an administrative review hearing on May 16, 2013. (Tr. 32-84, 133-45). He issued a written decision denying Wolf’s application on May 29, 2013. (Tr. 12-26). The Appeals Council denied Wolf’s subsequent request for review and on March 31, 2014, adopted the ALJ’s decision as the Commissioner’s final decision. (Tr. 1-3).

Wolf initiated the above-entitled action on May 29, 2014, seeking judicial review of the Commissioner’s final decision pursuant to 42 U.S.C. § 405(g). The parties have since filed summary judgment motions that are now ripe for review. They have also filed notice of their consent to the undersigned’s exercise of jurisdiction over this matter.

B. Factual background

1. Wolf’s personal data and work history

Wolf stands five feet, nine inches tall. (Tr. 40). At the time of his administrative hearing he was 34 years old and weighed 300 pounds. (Tr. 39-40). (Tr. 31). He lives with Ray Ann Christmann. (Tr. 39). He has three minor children who live with their mother. (Tr. 40). He has graduated from high school. He has twice attended college but does not have a degree. (Tr. 481).

Wolf has worked as construction laborer, locator of underground utility lines, mechanic, and heavy equipment operator. (Tr. 274-79, 308-13). He was most recently employed as a bore machine operator by Dakota Line Contractor’s Inc. (Id.). He has not engaged in any substantial gainful activity since September 2011. (Tr. 17, 44). He subsists on monthly workers compensation payments and his wife’s earned income. (Tr. 45, 61, 257-264).

Wolf suffers from a torn rotator cuff, obesity, a degenerative disc disease of the cervical spine, depression, anxiety, a learning disability that affects his reading comprehension, and sleep apnea. (Tr. 17-20). He also reported that he has a cataract in one of his eyes, that his eyes are very light sensitive, that he cannot drive at night without his glasses, that he has limited use of his left arm, and that he experiences chronic pain in his lower back and between his shoulder blades. (Tr. 43, 50, 61, 79). For pain relief, he has in the past taken a combination of prescription painkillers and muscle relaxers. (Tr. 62-63, 264, 272). However, he now relies primarily upon over-the-counter pain relievers such as ibuprofen and naproxen. (Tr. 63). For his depression, he has been prescribed Paxil. (Tr. 272).

2. Summary of Wolf’s relevant medical history

Wolf presented to the emergency room on September 18, 2011, with complaints of severe shoulder and neck pain dating back one week. (Tr. 367). X-rays of his chest and left shoulder were negative. (Tr. 370, 373-74). He was prescribed painkillers and muscle relaxers and discharged in stable condition. (Tr. 371-72).

On September 20, 2011, Wolf was examined by Dr. Laura Archuleta, who recommended that he participate in physical therapy and return in two weeks for further evaluation. (Tr. 399-400). Records reflect that Wolf reported to the Human Performance Center for physical therapy the following day and returned a handful of times thereafter. (Tr. 353, 456-58).

MRIs of Wolf’s left shoulder and cervical spine were taken on September 29, 2011. (Tr. 365-66). The MRI of his shoulder revealed that he had a small intrasubstance tear of the supraspinatus tendon, mild to moderate tendinopathy of the supraspinatus tendon, and moderate AC joint degenerative change. (Tr. 365). The MRI of his cervical spine revealed that he had disc protrusions at C5-C6 and C6-C7, moderate central canal stenosis at C5-C6, severe central canal stenosis at C6-C7, and severe left-sided neural foraminal stenosis at C6-C7. (Tr. 365-66).

Wolf was referred to Dr. Timothy Juelson, who, on October 3, 2011, gave him a corticosteroid injection in his shoulder. (Tr. 393-94).

On October 24, 2011, Wolf returned to Dr. Archuleta for a followup examination. (Tr. 402). In her notes, Dr. Archuleta opined that, absent surgical intervention, it was unlikely that Wolf would have any significant long-term recovery. (Id.). She issued Wolf a prescription for gabapentin and recommended that he follow up in one month’s time. (Id.).

On November 22, 2011, Wolf underwent a psychological evaluation with Dr. Thomas Eick at the West Center Human Service Center in Bismarck, North Dakota. (Tr. 418). During the evaluation, Wolf described symptoms of insomnia, depression, and anxiety brought on by his chronic pain, his inability to work, and attendant financial concerns. (Id.). Dr. Eick recommended that Wolf continue with individual therapy, started him on Lunesta and Paxil, and instructed him to return the following month. (Tr. 419).

On January 24, 2012, Wolf presented to Steve Churchill, a therapist with AIM Physical Therapy (“AIM”), for a standardized IWS Functional Capacity Evaluation. (Tr. 404-408). After two days of testing, Mr. Churchill concluded that Wolf was capable of performing “light to medium” work as those terms are defined on the Dictionary of Occupational Titles. (Tr. 406). Specifically, he opined that Wolf was “best suited for aspects of the upper range in the LIGHT work category and lower aspects of the MEDIUM work.” (Id.)

On January 30, 2012, Wolf presented to Dakota Pain Management Center for a physiatry initial assessment with Dr. Carol Krause. (Tr. 437-440). On April 14, 2012, he followed up with Dr. Krause. (Tr. 435-36). In her notes of this latter visit, Dr. Krause made the following observations about the Functional Capacity Evaluation performed at AIM:

They put him in the light to medium category of work. I would modify this to light category of work. They do note difficulty with him with use of the left arm especially overhead and recommend lifting this. However, under elevated work, they say occasional to frequent due to difficulty with left arm. I would limit this to occasional. They note sitting tolerance as frequent but he does need to get up and move every hour. They rate standing tolerance and walking tolerance as frequent. However, the patient states he can go 15 to 20 minutes at a time and needs to rest. They also talk about deconditioning, so I think a frequent standing and walking tolerance would be a little much. I’d limit this more to occasional. Other than that, his functional capacity assessment is a good starting point for his work restrictions.

(Tr. 435)

On April 28, 2012, Wolf returned to Dr. Krause, who encouraged him to continue taking his pain medication and further counseled him on techniques to manage his pain. (Tr. 433-34).

On March 13, 2012, Wolf returned to Dr. Krause, reporting that his neck pain had recently flared up and that he was experiencing numbness down his left arm into his fingers. (Tr. 431-42). Dr. Krause refilled his prescription for hydrocodone, increased his daily dosage of gabapentin, and again counseled him on techniques to help with pain management. (Id.).

On March 2, 2012, Wolf presented to Dr. Craig DeGree for a psychological evaluation. (Tr. 481-483). In his report, Dr. DeGree noted that Wolf had expressed a desire to obtain a commercial drivers’ license (“CDL”) or, in the alternative, find work with a local cable company in a position compatible with his physical limitations. (Tr. 481). He further noted that Wolf had taken the CDL test with accommodations but had failed. (Tr. 482). With respect to Wolf’s educational history, he highlighted the fact that Wolf had twice attended college, first in Wahpeton for a year and later at Bismarck State College for nine months, but had struggled with the content material and had not obtained a degree. (Id.). Reviewing Wolf’s test results, he diagnosed Wolf with the following: (1) a mixed receptive-expressive language disorder; (2) a reading disorder; (3) a disorder of written expression; and (4) an adjustment disorder with mixed emotional features. (Tr. 483).

On March 27, 2012, Wolf followed up with Dr. Krause. (Tr. 484). According to Dr. Krause’s notes, Wolf had pushed himself too hard when doing chores around the house and had exacerbated his shoulder and neck pain. (Id.). Dr. Krause counseled him, gave him samples of Celebrex, and encouraged him to return as needed. (Id.).

An MRI of Wolf’s neck taken in January 2013 showed “severe narrowing of the central spinal cord at C6-7 and at the neural foramen which is were the nerves exit the spine also at the C6-7 level.” (Tr. 486).

On February 13, 2013, Wolf presented to surgeon Steve Kraljic for a discectomy and fusion at C5-6 and 6-7. (Tr. 514-15).

In April 2013, Wolf presented to Dr. Chatree Wongjirad for a sleep study. (Tr. 525). He was diagnosed with severe obstructive sleep apnea, for which ...

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