Puckett v. Chater, 95-2238

• Decision Date: 12 November 1996
• Docket Number: No. 95-2238,95-2238
• Parties: R. CHRIS PUCKETT, Plaintiff-Appellant, v. SHIRLEY S. CHATER, Commissioner, Social Security Administration, * Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 730

100 F.3d 730

R. CHRIS PUCKETT, Plaintiff-Appellant, v. SHIRLEY S. CHATER, Commissioner, Social Security Administration,^* Defendant-Appellee.

No. 95-2238

United States Court of Appeals, Tenth Circuit

November 12, 1996

Appeal from the United States District Court for the District of New Mexico, (D.C. No. CIV-94-1314-JC) 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 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 disability 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, Section(s) 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 later, following three surgeries to shape his bone and stump. During the following 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 properly. The records of his physician, John Allen, M.D., noted continuing problems with the fit during this period. In April 1992, after switching prosthetic technicians, 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, assistant director/community outreach worker, and graphic artist. Accordingly, the ALJ concluded at step four of the controlling sequential analysis, see generally Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five-step analysis set out in 20 C.F.R. Section(s) 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 Section(s) 1.10C.3. See 20 C.F.R. pt. 404, subpt. P, app. 1, Section(s) 1.10C.3. Listing Section(s) 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. Section(s) 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, Section(s) 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, 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 Section(s) 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 Section(s) 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 Section(s) 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 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 demarcation 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 Section(s) 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 Section(s) 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 determined there was no prosthesis reasonably available to the claimant to use effectively; therefore his condition met the listings. In Gamble, the court apparently assumed that prosthetic fit problems were included within the scope of Listing Section(s) 1.10C.3. The decision, however, appeared to turn on claimant's poverty -- his inability to afford any prosthesis -- rather than technical problems in repairing or replacing a prosthesis that once was satisfactory.

We believe Listing Section(s) 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), neurological 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 Section(s) 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 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 (...