Ronald P. Wurst v. Carolyn W. Colvin

520 F. App'x 485
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 15, 2013
Docket12-2721
StatusUnpublished
Cited by6 cases

This text of 520 F. App'x 485 (Ronald P. Wurst v. Carolyn W. Colvin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ronald P. Wurst v. Carolyn W. Colvin, 520 F. App'x 485 (7th Cir. 2013).

Opinion

ORDER

Ronald Wurst says that he is disabled by obesity, arthritis in his knee, and nerve damage in his extremities. He applied for disability insurance benefits and supplemental security income, but his application was denied at each stage of review. A magistrate judge, presiding by consent, upheld the denial. Because the administrative law judge’s disability determination is supported by substantial evidence, we affirm the judgment.

In 2008 Wurst, then 50, applied for disability benefits and supplemental security income, claiming that he had become disabled the previous year. His physical problems, however, dated back to 2000 when — as a self-employed mechanic — he began experiencing numbness in his hands, legs, and feet. By 2005 the pain in his feet led him to see his primary-care physician, Dr. David Cespedes. Dr. Cés-pedes referred Wurst to Dr. John Mytych, a podiatrist, who diagnosed him with osteoarthritis in his feet and diabetic peripheral neuropathy (nerve damage caused by diabetes) in his hands, legs, and feet. My-tych recommended ankle-foot orthotics and pain medication. After his condition worsened, Wurst sold his business but continued to work as a mechanic in another car shop.

In 2006 Wurst injured his knee at work. He underwent a procedure performed by Dr. Shawn Palmer, an osteopathic physician, to remove damaged cartilage from his knee, but received no relief. The following year Wurst underwent a partial knee replacement. In the weeks after surgery, Dr. Palmer described Wurst’s condition as “wonderful” and noted that he could walk independently. And after two months of physical therapy, Wurst’s physical therapist released him back to work full time without restrictions. He lasted only two weeks, however, before pain in his knee and feet returned and sidelined him.

In 2008 the state agency’s physician, Dr. Ernst Bone, reviewed all of Wurst’s medical records in connection with his application and completed a residual functional capacity (“RFC”) assessment. In that assessment Dr. Bone concluded that Wurst could occasionally lift 20 pounds; frequently lift 10 pounds; and stand, walk, and sit *487 up to 6 hours in an 8-hour workday; but he had limited pushing and pulling abilities in his lower left extremity.

Two other physicians, however, reported that Wurst had more significant limitations. Dr. Mytych, the podiatrist, examined Wurst again in 2008 and noted his complaints of pain after only 15 to 30 minutes of standing. He diagnosed “severe osteoarthritis” in Wurst’s rear right foot and suggested that he “may very well evolve to being on disability” given his former work as a mechanic. Dr. Mytych also referred Wurst to Dr. Lucie Bianchi, a family-practice physician, who completed a medical examination of Wurst in February 2009 (more than a year after his last date insured) and concluded that his ability to walk and stand was compromised by more than 50%.

At his hearing before an ALJ in 2009, Wurst testified that he had largely recovered from his knee-replacement surgery but still had difficulties with stooping, crouching, crawling, and kneeling. He said he could walk up to four blocks at one time without the use of a walking aide, though he sometimes used a cane or shopping cart to steady himself in stores. On a bad day, he could stand for two to three hours and sit for up to four hours, and on a good day could stand an hour longer before having to change positions. He could lift 50 pounds (he did not clarify whether he meant once or repeatedly) but about half of the time had trouble gripping things. He could drive, cook, wash dishes, do laundry, and use a leaf blower, but could not walk his dog.

A vocational expert also testified at the hearing. In his opinion a person with Wurst’s vocational background who could perform light-duty work — but with limitations on bending and using stairs — could still work as an oil-change mechanic, of which 9,200 positions existed in the area. If this person also needed to vary between sitting and standing every hour, the VE testified, he could still work as a hand assembler, hand packer, and hand sorter, of which over 11,000 positions existed in the area.

The ALJ found Wurst not disabled after evaluating his claim under the five-step sequence set forth in 20 C.F.R. § 404.1520(a)(4). The ALJ concluded that Wurst had not worked since his alleged onset date (Step 1); his knee and feet problems and obesity qualified as “severe” impairments (Step 2); his impairments did not meet or medically equal a listed impairment (Step 3); his RFC allowed him to perform light-duty work, which precluded his past work as a mechanic (Step 4); and he could work as an assembler, packer, or sorter (Step 5). In evaluating Wurst’s RFC, the ALJ discredited Wurst’s testimony regarding his symptoms because it was contradicted by the medical evidence and Wurst’s previous written statements.

Of Wurst’s many arguments on appeal, we first address his challenge to the ALJ’s adverse credibility determination, which affects all of his other arguments. Wurst points out that the ALJ’s credibility determination consists of boilerplate language that this court has repeatedly criticized: “[T]he claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.” We have indeed criticized such language, see, e.g., Bjornson v. Astrue, 671 F.3d 640, 644-45 (7th Cir.2012); Martinez v. Astrue, 630 F.3d 693, 694 (7th Cir.2011); Parker v. Astrue, 597 F.3d 920, 921-22 (7th Cir.2010), but we have also noted that its use is harmless if the ALJ provides additional reasons for her finding, see Filus v. Astrue, 694 F.3d 863, 868 (7th Cir.2012); Shideler v. As- *488 true, 688 F.3d 306, 311-12 (7th Cir.2012). Here the ALJ properly discounted Wurst’s testimony of his difficulty standing and walking because it conflicted with other parts of his testimony and medical records suggesting that his mobility was not so limited.

Wurst next challenges the ALJ’s determination at step three that his impairments did not meet or medically equal a medical listing. He dismisses as “perfunctory” the ALJ’s single-sentence explanation: “The claimant’s impairments, alone or combined!,] do not meet or medically equal the criteria of 1.02 or 1.03 of the Listing of Impairments as he is able to ambulate effectively without the use of an assistive device.” This brief statement, he says, failed to consider the medical evidence and Wurst’s testimony that he had difficulty ambulating.

In deciding whether an impairment meets or equals a listed impairment, an ALJ must mention the relevant listings and make more than a “perfunctory analysis” of whether the impairment meets the criteria. Ribaudo v. Barnhart,

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Bluebook (online)
520 F. App'x 485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ronald-p-wurst-v-carolyn-w-colvin-ca7-2013.