Puckett v. Chater

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 11/12/96
TENTH CIRCUIT

R. CHRIS PUCKETT,

Plaintiff-Appellant,

v. No. 95-2238

SHIRLEY S. CHATER,
Commissioner, Social Security
Administration, *

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-94-1314-JC)

Submitted on the briefs:

James A. Burke, Santa Fe, New Mexico, for Plaintiff-Appellant.

John J. Kelly, United States Attorney, Joseph B. Liken, Acting Chief Counsel,
Region VI, Linda H. Green, Assistant Regional Counsel, Office of the General

*
Effective March 31, 1995, the functions of the Secretary of Health
and Human Services in social security cases were transferred to the Commissioner
of Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), Shirley
S. Chater, Commissioner of Social Security, is substituted for Donna E. Shalala,
Secretary of Health and Human Services, as the defendant in this action.
Although we have substituted the Commissioner for the Secretary in the caption,
in the text we continue to refer to the Secretary because she was the appropriate
party at the time of the underlying decision.
Counsel, U.S. Social Security Administration, Dallas, Texas, for Defendant-
Appellee.

Before PORFILIO, LOGAN, and LUCERO, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiff R. Chris Puckett appeals the district court’s judgment affirming

the Secretary’s decision denying plaintiff’s application for social security disabil-

ity benefits. The principal issue on appeal is whether plaintiff’s difficulty in

repairing or replacing a prosthesis for his leg qualifies as a stump complication or

its equivalent under 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.10C.3.

We review to determine whether the Secretary applied the correct legal

standards and whether substantial evidence in the administrative record viewed as

a whole supports the factual findings. Castellano v. Secretary of Health & Human

Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). We affirm. 1

Plaintiff’s left leg was amputated above the knee in 1969, after he was

injured in a motorcycle accident. He received a prosthesis about a year and a half

1
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.

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later, following three surgeries to shape his bone and stump. During the follow-

ing twenty years, he successfully used the prosthesis and worked as a counselor,

assistant director and community outreach worker at a drug rehabilitation center,

a purchasing agent, and a graphic artist. Most recently, in 1989, he worked for

Color Tile in sales and loading and unloading trucks. In August 1989 while

unloading a ninety pound box of marble, plaintiff’s prosthesis broke. Plaintiff

stopped working for Color Tile in December 1989 because his prosthesis had

deteriorated badly and was damaging his stump. From December 1989 until April

1992, he had a prosthesis but had considerable difficulties getting it to fit prop-

erly. The records of his physician, John Allen, M.D., noted continuing problems

with the fit during this period. In April 1992, after switching prosthetic techni-

cians, plaintiff obtained a new prosthesis with a satisfactory fit.

Plaintiff’s application for disability benefits alleged disability beginning in

December 1989, due to the amputation of his left leg, back pain with degenerated

discs, and arthritis. The administrative law judge (ALJ) determined that although

plaintiff “has severe limitations secondary to status post amputation of the left

leg,” he did not have an impairment or combination of impairments meeting or

medically equal to the listings and his subjective complaints lacked credibility.

Appellant’s Supp. App. of Admin. Rec. (Supp. App.) 22. The ALJ further

determined that plaintiff could perform his past relevant work as a counselor,

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assistant director/community outreach worker, and graphic artist. Accordingly,

the ALJ concluded at step four of the controlling sequential analysis, see gener-

ally Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five-

step analysis set out in 20 C.F.R. § 404.1520), that plaintiff was not disabled.

The Appeals Council denied review. The district court upheld the Secretary’s

decision, and plaintiff appealed.

I

Plaintiff first argues that he is entitled to a finding of disability at step three

of the sequential analysis because he met Listing § 1.10C.3. See 20 C.F.R. pt.

404, subpt. P, app. 1, § 1.10C.3. Listing § 1.10C.3 describes an impairment

which by itself is of such severity that it prevents a claimant from performing any

gainful activity. See Kemp v. Bowen, 816 F.2d 1469, 1473 (10th Cir. 1987)

(citing 20 C.F.R. § 404.1525(a)). In relevant part, it provides for a determination

of disability for claimants with an amputation of a lower extremity who have an

“[i]nability to use a prosthesis effectively, without obligatory assistive devices,

due to one of the following: . . . 3. Stump too short or stump complications

persistent, or are expected to persist, for at least 12 months from onset.” 20

C.F.R. pt. 404, subpt. P, app. 1, § 1.10C.3.

Plaintiff contends that the evidence shows he was unable for two years to

obtain a satisfactory prosthetic fit, resulting in pain and irritation to his stump,

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groin, and back. The Secretary does not dispute the allegation of an ill-fitting

prosthesis. Rather, she argues that plaintiff’s problems are not stump problems,

as is required by the listing, but instead are problems with the prosthetic socket.

Plaintiff counters that no distinction should be made between stump and socket

problems under the listing, because the stump redness and irritation rendered the

prosthesis ineffective.

The issue before us concerns the proper interpretation of Listing § 1.10C.3.

Only two circuits have discussed that listing. In Gagnon v. Secretary of Health &

Human Services, 666 F.2d 662, 664 (1st Cir. 1981), the evidence showed the

claimant had worn a prosthesis daily for many years. Although he asserted his

amputated leg was infected and he found it difficult to use his prosthesis, he

could stand for at least two hours per day and walk one-half mile. The court held

that the claimant could use his prosthesis satisfactorily even though a new type of

prosthesis might be better, and that he did not meet Listing § 1.10C.3. Gagnon

did not directly address whether prosthesis fit problems are within the scope of

the listing.

In Gamble v. Chater, 68 F.3d 319, 322 (9th Cir. 1995), the court held “that

a person whose leg was amputated at or above the tarsal region satisfies Listing

§ 1.10 if he is unable to use any prosthesis that is reasonably available to him.”

That claimant’s stump had begun to “break down.” Id. at 320. The condition

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worsened resulting in increased pain and “multiple boil-type pressure sores on

weight bearing areas and a large purple crusty area with sharp lines of demarca-

tion on the anterior distal portion of his shin.” Id. (quotation omitted). The

claimant’s ill-fitting prosthesis could no longer be satisfactorily adjusted.

Because the claimant could not afford a new prosthesis, his treating doctor limited

him to walking with a crutch. The Secretary determined that the claimant’s

condition did not meet or equal the Listing § 1.10 requirement of inability to use a

prosthesis effectively.

On appeal, neither party disputed that the claimant’s prosthesis caused

stump complications or that he could not afford a suitable replacement. The

Ninth Circuit thought the Secretary’s interpretation of Listing § 1.10C.3 was that

“unless the claimant can demonstrate that there exists no prosthesis that would

properly fit his stump and enable him to walk without an assistive device, he

cannot satisfy the listing.” Id. It rejected this view, stating that “the question is

whether the claimant, himself, can realistically obtain such a prothesis.” Id. at

322. Because the claimant could not afford a new prosthesis, the court deter-

mined there was no prosthesis reasonably available to the claimant to use effec-

tively; therefore his condition met the listings. In Gamble, the court apparently

assumed that prosthetic fit problems were included within the scope of Listing

§ 1.10C.3. The decision, however, appeared to turn on claimant’s poverty--his

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inability to afford any prosthesis--rather than technical problems in repairing or

replacing a prosthesis that once was satisfactory.

We believe Listing § 1.10 plainly requires stump complications, not

problems with prosthetic fit. Under that listing the inability to effectively use a

prosthesis must be due to one of four conditions: vascular disease (C.1), neuro-

logical complications (C.2), disorder of contralateral lower extremities (C.4), or

the condition at issue before us: “stump too short or stump complications” (C.3).

These conditions all relate to problems of the claimant’s body itself. Problems

with technicians’ ability to repair or replace a prosthesis that a claimant used

satisfactorily for twenty years does not fall within the scope of the listing. In

order to meet the § 1.10C.3 listing requirement, plaintiff must prove that he is

unable to use a prosthesis effectively because of stump complications lasting for

at least twelve months.

The evidence does not show that plaintiff has stump complications meeting

the listing. After plaintiff’s leg was amputated he had three additional surgeries

to shape his stump for a prosthesis. At no time relevant to the instant disability

determination was there any indication that plaintiff needed revisions to his

stump. See, e.g., Supp. App. 140 (Dr. Allen’s notation that “no revision of the

stump has been required”); id. at 64 (Dr. Gerald Greene’s testimony that the

stump “seems to be satisfactory”). Dr. Allen’s indication that plaintiff always

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will have stump problems, even with the best management, is not enough to

establish an impairment meeting the listing. According to Dr. Allen, any stump

problems are primarily due to an improper fit of the prosthesis. See, e.g., id. at

198 (plaintiff “has been unable to use his prothesis effectively due primarily to

problems with the prothesis”). See generally Bean v. Chater, 77 F.3d 1210, 1214

(10th Cir. 1995) (generally ALJ gives controlling weight to treating doctor’s well

supported opinion about the nature and severity of claimant’s impairments). No

medical records reflect a stump problem independent of the prosthesis fit or

plaintiff’s overuse of the prosthesis. See Supp. App. 146 (“secondary stump

problems”); id. at 164 (“excessive stump wear has probably been solved by a

small modification in the socket”); id. at 234-35 (stump redness and irritation

caused by poor fit and amount of work plaintiff was demanding of prosthesis).

II

Even if the listing is interpreted to apply only to stump problems, plaintiff

argues that his inability to use the prosthesis is equal in severity to Listing

§ 1.10C.3. “Because the listings could not possibly include every physical

impairment severe enough to prevent the claimant from ‘any gainful activity,’ the

Secretary also established regulations for assessing unlisted impairments or

combinations of impairments.” Davidson v. Secretary of Health & Human Servs.,

912 F.2d 1246, 1251-52 (10th Cir. 1990) (citing 20 C.F.R. § 404.1526).

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 An impairment which is “medically equivalent” to those listed
in the Appendix will suffice “if the medical findings are at least
equal in severity and duration to the listed findings.” If the impair-
ment is not listed, then the listed impairment “most like” the impair-
ment is considered, and if the applicant has more than one impair-
ment, and none meets or equals a listed impairment, then all symp-
toms, signs and laboratory findings are to be considered in determin-
ing medical equivalency. In all events, the determination of medical
equivalence is to be based solely on medical findings. 20 C.F.R.
§ 404.1526.

Kemp, 816 F.2d at 1473; see also Sullivan v. Zebley, 493 U.S. 521, 531-33

(1990). Here, the medical evidence does not show that plaintiff’s condition at

least equaled Listing § 1.10C.3. 2 The ALJ did not err in his determination that

plaintiff does not have an impairment or combination of impairments meeting or

medically equal to the requirements of Listing § 1.10C.3.

III

We need not comment extensively on plaintiff’s other arguments. Plaintiff

contends that the testimony of the medical advisor, Dr. Greene, did not provide

substantial evidence to support a determination of no disability, as he admitted to

having limited experience with adjustment and repair of prosthetic devices. The

ALJ, however, did not base her decision solely upon Dr. Greene’s testimony.

2
The ALJ permissibly gave little weight to Dr. Emmett Altmann’s
conclusory opinion that plaintiff’s situation met or equaled Listing § 1.10C.3.
See Supp. App. 218; see also 20 C.F.R. § 404.1525(d).

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Rather, she considered the complete medical record, made an independent

assessment of the evidence, and then made a decision.

Plaintiff argues that the ALJ failed to give due consideration to his com-

bined impairments of prosthesis fit, degenerative arthritis, back pain, depression,

and a torn meniscus in his right leg, as described by Dr. Guy Fogel. This argu-

ment was not presented to the district court. “Absent compelling reasons, we do

not consider arguments that were not presented to the district court.” Crow v.

Shalala, 40 F.3d 323, 324 (10th Cir. 1994). As in Crow, plaintiff has been

represented by counsel throughout all proceedings, and “we see no reason to

deviate from the general rule.” Id. Nevertheless, we see no merit to the argu-

ment, because the ALJ considered Dr. Fogel’s medical examination report along

with the other medical evidence. Although Dr. Fogel indicated that plaintiff had

not yet reached maximum medical improvement, that possibility does not alone

establish disability.

Plaintiff finally argues that the ALJ improperly deprived plaintiff of a full

and adequate opportunity to develop the record by (1) refusing to copy and

provide records to plaintiff’s attorney; (2) preventing plaintiff’s attorney from

looking at Dr. Greene’s notes before cross examining him; and (3) acting in an

injudicious manner. Because the ALJ had an open file policy, plaintiff had an

opportunity to view and copy the evidence in the file before the hearing. See

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20 C.F.R. § 404.916(b)(3). Nothing requires that the Secretary copy records for a

claimant. If the proceeding had been in district court, plaintiff’s counsel would

have been entitled under Fed. R. Evid. 612, for use in cross examination, to

examine Dr. Greene’s notes on the medical records to which he referred while

testifying. Although it would seem good practice to follow in an administrative

hearing, the applicable regulations do not require the ALJ to adhere to the Federal

Rules of Evidence. See Vaughan v. Shalala, 58 F.3d 129, 132 (5th Cir. 1995)

(citing 20 C.F.R. § 404.950(c)). In any event plaintiff did not raise either the

cross examination or bias issue in the district court. Further, plaintiff’s conclu-

sory allegation of bias by the ALJ is without support in the administrative record,

which shows that plaintiff received a full opportunity to develop the record and

present post-hearing evidence. Cf. Isom v. Schweiker, 711 F.2d 88, 90 (8th Cir.

1983) (any bias corrected by ALJ’s allowance of complete record).

AFFIRMED.

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