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Ronald P. Wurst v. Michael J. Astrue

May 30, 2012

RONALD P. WURST, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Morton Denlow

MEMORANDUM OPINION AND ORDER

Claimant Ronald P. Wurst ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner"), denying Claimant's application for Disability Insurance Benefits ("DIB"). Claimant raises the following issues in support of his motion: (1) whether the ALJ's determination at step two was erroneous; (2) whether the ALJ's determination at step three was erroneous; (3) whether the ALJ's RFC determination at step four was erroneous; (4) whether the ALJ's credibility determination was patently wrong; and (5) whether the ALJ's step five determination was erroneous. For the following reasons, the Court denies Claimant's motion to reverse the final decision of the Commissioner of Social Security and grants the Commissioner's motion to affirm the Commissioner's decision.

I. BACKGROUND FACTS

A. Procedural History

Claimant filed for SSI and DIB on April 17, 2008, alleging disability onset dates of April 15, 2006 and May 10, 2006, respectively. R. 98-101, 102-10. Claimant later amended his alleged onset date to July 18, 2007, his 50th birthday. R. 212. The Social Security Administration ("SSA") denied the DIB application on June 12, 2008.*fn1 R. 49. Claimant then filed a request for reconsideration which was denied on September 9, 2008. R. 50, 52-55. Thereafter, Claimant requested a hearing before an ALJ. R. 60.

On November 19, 2009, Administrative Law Judge Janice M. Bruning ("ALJ") presided over a hearing at which Claimant appeared with his attorney Stephen Tousey. R. 28-46. Claimant and Edward F. Pagella, a vocational expert ("VE"), testified. On January 13, 2010, the ALJ rendered a decision finding Claimant not disabled through his date last insured. R. 11-21.

Claimant sought review of the ALJ's decision to the Appeals Council. R. 4-6. On May 28, 2010, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner.*fn2 R. 1-3. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).The parties have consented to the jurisdiction of this Court pursuant to 28 U.S.C. § 636(c). Dkt. 16. The Court held an oral argument on May 23, 2012.

B. Hearing Testimony - November 19, 2009

1. Ronald Wurst - Claimant

At the time of the hearing, Claimant was fifty-two years old. R. 98. He completed school through the twelfth grade. R. 147. At the time of the hearing, Claimant was receiving unemployment benefits and looking for a light duty job. R. 30-31. Claimant testified that he has a plastic canal in his right ear and is 90% deaf in his left ear. R. 31. He takes medication for his foot pain, but not his knee and testified that he has recovered 90% from his knee replacement surgery. R. 32. He takes oral medication for his diabetes. Id.

Claimant's ability to walk depends on the time of day and weather. On a damp day he can walk two blocks before needing to rest, while he can walk three to four blocks on a sunny day. R. 32-33. He testified that on a good day he can stand for one to three hours and can sit for three or four hours at a time. R.33. On a bad day he can stand for thirty to forty-five minutes before needing to rest his feet. R. 40. In total, out of an eight hour work day, he can stand for two to three hours on a bad day. R. 41. On a good day, that increases by an hour. Id. In an average week, five days are bad and two days are good. Id.

Claimant has difficulty with stairs and sleeps on a couch a floor below his bedroom to minimize the number of stairs he must climb. R. 33. Claimant also has difficulty bending, stooping, crouching, crawling and kneeling. R. 34. Claimant estimated that he can lift fifty pounds. R. 33. His balance is sometimes off, depending on his medications. R. 34.

Claimant does not regularly use an assistive device but will use one if available. As an example, he explained that he uses a shopping cart to assist with walking at a store. Id.

Regarding daily activities, Claimant drives everyday, can prepare simple meals (using the microwave, for example), takes out the garbage, and can do dishes and laundry. R. 35-36. His ability to make the bed depends on stiffness; he can do very little vacuuming because he can't carry it up and down stairs, and he can use a leaf blower in the yard but not do other yard work. R. 36.

Claimant testified that his family goes to drag races approximately two times per month and he participates as a crew chief. R. 36-37. Claimant sits in a chair or golf cart and does not personally do any car maintenance. R. 37. He also attends swap meets and uses a mobility cart to get around the swap meets. Id. Claimant once rode a motorcycle but quit around November 2007, one month before his date last insured. Id. Claimant socializes with family and friends at home, watches television, and reads magazines. R. 38. He also feeds and grooms his dog. Id.

2. Edward F. Pagella - Vocational Expert

Edward Pagella testified as a vocational expert. The VE described Claimant's past work, classifying his job as a mechanic as skilled, medium work. The VE testified that Claimant's mechanical skills from that job are transferable to light level work as an oil change mechanic. R. 43. The specific mechanical skills are: knowledge and utilization of a variety of different types of hand tools; precision; and tuning of an automobile. Id.

The ALJ described a hypothetical person of Claimant's age, education and work experience who can: lift and carry twenty pounds occasionally and ten pounds frequently; stand and/or walk for a total of six hours in an eight hour work day; cannot ever climb ladders, ropes, or scaffolding; can occasionally climb ramps and stairs, balance, stoop, crouch, kneel, and crawl; and can push and pull occasionally with the left lower extremity. Id. The VE testified that this person could perform the oil change job, of which there are 9200 positions in Claimant's region. R. 43-44. The ALJ then added a sit/stand at will option that would allow the hypothetical person to change positions after one hour. R. 44. With this option, the VE testified that Claimant would not be able to use his transferable skills, but could perform unskilled occupations such as hand assembler, of which there are 5600 positions; hand packer, of which there are 4200 positions; and hand sorter, of which there are 1800 positions. Id.

C. Medical Evidence

1. Dr. Shawn W. Palmer, D.O., Orthopedic & Spine Associates

Claimant presented at Orthopedic & Spine Surgery Associates on June 8, 2006 due to a knee injury at work sustained while he was getting up off the ground. R. 386. Previous medical history at that point included hypertension and Type II diabetes. Id. On June 22, 2006, Dr. Shawn Palmer, D.O. ("Dr. Palmer), diagnosed a torn meniscus and a secondary Baker's cyst. R. 385, 445. The doctor recommended an arthroscopy for debridement of Claimant's medial meniscus. Id.

Claimant was admitted to Provena St. Joseph Hospital on July 10, 2006, for treatment of the torn meniscus in his left knee. R. 323, 333-34. On that date Dr. Palmer performed an arthroscopy, partial medial meniscectomy, chondroplasty of the medial femoral condyle, and partial synovectomy. R. 333. Claimant was discharged the same day. R. 335.

On July 13, 2006, Claimant followed up with Dr. Palmer. R. 385. Dr. Palmer indicated that the arthroscopy showed a large tear, Claimant was to start physical therapy, and Claimant could only perform sedentary work. R. 385. On July 27, 2006, mild improvements were noted and Dr. Palmer prescribed medications to decrease swelling and continued physical therapy. Claimant was "certainly not ready to return to his vigorous line of work." R. 384. On August 24, 2006, Claimant continued to have persistent pain. Id. The doctor determined that Synvisc treatment (one shot per week for three weeks) would be an appropriate next step. Id. At that point, Dr. Palmer opined that Claimant would only be able to engage in sedentary work and if the Synvisc treatment was not successful, Claimant would face a reconstructive procedure. Id. The Synvisc procedure (actually Hyalgan, but this appears to be simply a different trade name for the same generic drug) was completed on September 15, 2006. R. 382. On October 5, 2006, Dr. Palmer noted the procedure gave Claimant almost no relief and it was the doctor's opinion that Claimant was headed towards a partial knee replacement. R. 382. On November 2, 2006, Dr. Palmer recommended a partial knee replacement. R. 381. At that time, it was Dr. Palmer's opinion that Claimant could not perform more than sedentary work. Id.

2. Royal Physical Therapy - 2006

Records from Royal Physical Therapy show Claimant began treatment there on July 18, 2006 and terminated treatment on August 24, 2006. R. 424-33. Initially Claimant reported improvement, but then indicated increased pain, though that may be attributable to discontinuing his medications. R. 425-29.

3. Provena St. Joseph Hospital

On February 5, 2007, Claimant was admitted to Provena St. Joseph Hospitalfor a partial knee replacement by Dr. Palmer. R. 232. No complications were reported. R. 233. In a consultation with Dr. Lynn D. Mershon ("Dr. Mershon") the day after surgery, Claimant reported "I am in so much pain you won't believe it." R. 228. Dr. Mershon recommended that Claimant continue to receive bedside physical and occupational therapy and noted pain ...


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