DeChirico v. Callahan, 248

• Decision Date: 26 January 1998
• Docket Number: D,No. 248,248
• Citation: 134 F.3d 1177
• Parties: , Unempl.Ins.Rep. (CCH) P 15824B Frank DeCHIRICO, Plaintiff-Appellant, v. John J. CALLAHAN, Acting Commissioner of the Social Security Administration, Defendant-Appellee. ocket 97-6026.
• Court: U.S. Court of Appeals — Second Circuit

Page 1177

134 F.3d 1177

55 Soc.Sec.Rep.Ser. 336, Unempl.Ins.Rep. (CCH) P 15824B

Frank DeCHIRICO, Plaintiff-Appellant, v. John J. CALLAHAN, Acting Commissioner of the Social Security Administration, Defendant-Appellee.

No. 248, Docket 97-6026.

United States Court of Appeals Second Circuit.

Argued Sept. 26, 1997.

Decided Jan. 26, 1998.

Toby Golick, Cardozo Bet Tzedek Legal Services, New York City, for Plaintiff-Appellant.

Stanley N. Alpert, Assistant United States Attorney, New York City, for Defendant-Appellee.

Before MESKILL and CALABRESI, Circuit Judges, and KOELTL, ^* District Judge.

Judge MESKILL concurs in part and dissents in part in a separate opinion.

CALABRESI, Circuit Judge:

Is a leg amputation a per se disabling condition under the Social Security Regulations, 20 C.F.R. § 404.1520(d) & Pt. 404, Subpt. P, App. 1, § 1.10, if the amputee cannot reasonably obtain a properly fitting prosthesis that will allow the wearer to walk without an "obligatory assistive device" such as a cane? We conclude that it is. Because, however, the plaintiff did not meet his burden of showing that he was in fact unable to obtain a properly fitting prosthesis, we affirm the denial of benefits.

Background

Frank DeChirico is a thirty-eight year old man who received disability benefits for over nine years following a 1981 motorcycle accident in which he sustained injuries that ultimately resulted in the amputation of the lower portion of his left leg. He now wears a prosthetic limb. In 1990, DeChirico's benefits were terminated because he was incarcerated. See 20 C.F.R. § 416.1325 (providing for suspension of benefits to a recipient who is a resident of a "public institution"); 20 C.F.R. § 416.1335 (providing for termination of benefits following twelve consecutive months of benefit suspension). On November 24, 1992, just prior to his release from prison, DeChirico reapplied for disability benefits.

Following a hearing, the administrative law judge ("ALJ") determined that DeChirico was not disabled, and denied his application. The ALJ made the following factual findings: (1) DeChirico had not worked since the late 1970's (prior to his accident). (2) He suffered from a "severe" impairment--the leg amputation--but "[did] not have an impairment or combination of impairments listed in, or medically equal to one listed in" the Social Security regulations defining per se disabling conditions. ¹ (3) His "subjective testimony as to 'disabling' ... impairment [was] not supported by objective medical evidence and [was] therefore not credible in establishing [a] 'disability.' " (4) He has the residual functional capacity "to perform the full range of 'sedentary' and 'light' work." (5) His age falls into the category of "younger" under the regulations. (6) He has a high school equivalency degree. And (7) he is not "disabled."

The Appeals Council denied DeChirico's request for review, thereby making the ALJ's ruling the final decision of the Commissioner. See Perez v. Chater, 77 F.3d 41, 44 (2d Cir.1996); 20 C.F.R. §§ 404.981, 416.1481. DeChirico then appealed the decision in the district court (Eugene H. Nickerson, Judge ), which granted the Commissioner's motion for judgment on the pleadings and dismissed the action. DeChirico now appeals that ruling, arguing (1) that the ALJ erred in concluding that he was not disabled per se; (2) that the ALJ also erred in failing to subpoena DeChirico's Social Security file from the nine-year period when (prior to being incarcerated) DeChirico was receiving disability benefits; and (3) that there was insufficient evidence to support the ALJ's conclusion that DeChirico was capable of performing sedentary or light work.

Discussion

I. The Applicability of Listing § 1.10

The Social Security regulations establish a five-step process for evaluating disability claims:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.... [T]he claimant bears the burden of proof as to the first four steps, while the [Commissioner] must prove the final one.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982).

The ALJ in this case determined that DeChirico was not performing substantial gainful activity and that his amputation constituted a "severe impairment." Thus, DeChirico's claim survived the first two steps of the inquiry. The ALJ concluded, however, that DeChirico could not be deemed per se disabled at step three because his severe impairment did not qualify under Listing § 1.10. Having so determined, the ALJ then went on to find that DeChirico had no past relevant work (step four), but that he could perform "sedentary" or "light" work (step five). DeChirico argued on appeal to the district court, and again in this court, that the ALJ erred in failing to find him per se disabled at step three, which would have made him eligible for benefits regardless of steps four and five.

The Social Security regulations list certain impairments, any of which is sufficient, at step three, to create an irrebuttable presumption of disability. See 20 C.F.R. §§ 404.1520(d), 416.920(d); see also id. at Pt. 404, Subpt. P, App. 1 (listing of per se disabling conditions). The regulations also provide for a finding of such a disability per se if an individual has an impairment that is "equal to" a listed impairment. See id. § 404.1520(d) ("If you have an impairment(s) which ... is listed in appendix 1 or is equal to a listed impairment(s), we will find you disabled without considering your age, education, and work experience.").

Persons who, like DeChirico, have leg amputations at or above the tarsal region (i.e., the ankle) are disabled per se if they meet any of a number of other criteria specified in the regulations. See id. at Pt. 404, Subpt. P, App. 1, § 1.10 ("Listing § 1.10"). The only "listed" criterion relevant to this case is:

C. Inability 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....

Listing § 1.10.C.

DeChirico testified at his disability hearing that, because of ongoing problems wearing his prosthesis, he had difficulty standing and could not walk at all without a cane--which qualifies as an "assistive device." See, e.g., Walker v. Bowen, 826 F.2d 996, 998 (11th Cir.1987) (quoting medical evidence treating a cane as an assistive device); 14 C.F.R. § 382.41(c) (requiring airlines to permit disabled passengers "to stow canes and other assistive devices" near their seats); 42 C.F.R. § 488.115, at 727 (stating that the dining areas of nursing homes must have "sufficient space between tables to allow for safe passage of wheelchairs and residents with walkers, canes and other assistive devices").

According to DeChirico, his health problems at the time he sought disability coverage included, inter alia, stump scarring and intermittent inflammation or "skin breakdown" on the stump. He further argues that most or all of these difficulties resulted from prosthesis intolerance (the inability to obtain a prosthesis that fits properly and causes no injury to the wearer). The Commissioner responds that there was ample evidence in the record to support the ALJ's decision that DeChirico could use his prosthesis effectively, and hence that DeChirico was not per se disabled. DeChirico denies that the evidence supported that conclusion. We review the sufficiency of the evidence in light of the requirements of Listing § 1.10.

Although we have not had occasion to interpret Listing § 1.10, the Ninth and Tenth Circuits each have done so. ²

Gamble v. Chater, 68 F.3d 319 (9th Cir.1995), was the first case to analyze the relevant portions of the listing. Gamble was an amputee who had suffered from various stump complications, including skin breakdown and pressure sores. Id. at 320. The medical evidence was clear that Gamble's ill-fitting prosthesis had caused these problems and had left him unable to walk without crutches ("assistive devices"). See id. A new prosthesis had been prescribed to treat the complications, but was not reasonably available to Gamble. The ALJ concluded that Gamble's inability to get a suitable prosthesis did not constitute "stump complications" under Listing § 1.10, and denied the application.

The Court of Appeals for the Ninth Circuit reversed. It held that Gamble qualified under Listing § 1.10 because his inability to obtain the new prosthesis forced him to continue wearing one that did not fit. And, for that reason, he could not use his prosthesis effectively without crutches. The court concluded 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," id. at 322, regardless of whether "somewhere on the planet there exists a prosthesis that ...