Gabriel v . SSA 08-CV-171-SM 02/24/09
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Eugene M . Gabriel,
Claimant
v. Civil N o . 08-cv-171-SM
Opinion N o . 2009 DNH 019
Michael Astrue,
Commissioner, Social
Security Administration,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, Eugene M . Gabriel,
moves to reverse the Commissioner’s decision denying his
applications for Social Security disability insurance benefits,
or DIB, under Title II of the Social Security Act,
42 U.S.C.
§ 423, and for supplemental security income, or S S I , under Title
XVI,
42 U.S.C. § 1382. In the alternative, Gabriel asks the
court to remand the case for a new administrative determination.
The Commissioner, in turn, moves for an order affirming his
decision. For the reasons given, the matter is remanded to the
Administrative Law Judge (“ALJ”) for further proceedings
consistent with this opinion.
Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power to enter, upon
the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive
. . . .
42 U.S.C. § 405(g) (setting out the standard of review for DIB
decisions); see also
42 U.S.C. § 1383(c)(3) (establishing
42
U.S.C. § 405(g) as the standard of review for SSI decisions).
However, the court “must uphold a denial of social security . . .
benefits unless ‘the [Commissioner] has committed a legal or
factual error in evaluating a particular claim.’” Manso-Pizarro
v . Sec’y of HHS,
76 F.3d 1 5 , 16 (1st Cir. 1996) (quoting Sullivan
v . Hudson,
490 U.S. 8 7 7 , 885 (1989)).
As for the statutory requirement that the Commissioner’s
findings of fact be supported by substantial evidence, “[t]he
substantial evidence test applies not only to findings of basic
evidentiary facts, but also to inferences and conclusions drawn
from such facts.” Alexandrou v . Sullivan, 764 F. Supp. 916, 917-
18 (S.D.N.Y. 1991) (citing Levine v . Gardner,
360 F.2d 7 2 7 , 730
(2d Cir. 1966)). In turn, “[s]ubstantial evidence is ‘more than
[a] mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.’” Currier v . Sec’y of HEW,
612 F.2d 5 9 4 , 597 (1st
2
Cir. 1980) (quoting Richardson v . Perales, 402 U.S. 389, 401
(1971)). Finally, when determining whether a decision of the
Commissioner is supported by substantial evidence, the court must
“review[] the evidence in the record as a whole.” Irlanda Ortiz
v . Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam)
(quoting Rodriguez v . Sec’y of HHS,
647 F.2d 2 1 8 , 222 (1st Cir.
1981)). 1
Background
The parties have submitted a Joint Statement of Material
Facts (document n o . 2 0 ) . That statement is part of the court’s
record and will be summarized here, rather than repeated in full.
Eugene Gabriel is forty-eight years old. When he was
eighteen, he was diagnosed with osteosarcoma, and his left leg
was amputated above the knee. Since then, he has worn an above-
the-knee prosthesis. Until approximately 1996, he had regular
follow-up care, but has not had any since then. In November,
2006, he was diagnosed with diabetes, based upon a finding of a
1
“It is the responsibility of the [Commissioner] to
determine issues of credibility and to draw inferences from the
record evidence. Indeed, the resolution of conflicts in the
evidence is for the [Commissioner], not the courts.” Irlanda
Ortiz, 955 F.2d at 769 (citations omitted). Moreover, the court
“must uphold the [Commissioner’s] conclusion, even if the record
arguably could justify a different conclusion, so long as it is
supported by substantial evidence.” Tsarelka v . Sec’y of HHS,
842 F.2d 529, 535 (1st Cir. 1988).
3
glucose HbA1C4 level of 6.4 by a laboratory which reported the
normal range as 4.8 - 6.0.
At the time of his hearing, Gabriel was working part-time in
the seafood department at a grocery store. Typically, he worked
two four-hour days in a row, followed by a day off, and then
worked two more four-hour days, followed by two days off. Before
his job at the grocery store, Gabriel worked at a pizza
restaurant that allowed him flexible hours and provided a number
accommodations that permitted him to take care of his stump,
which tended to blister and bleed if he wore his prosthesis for
too long. Cursory examination of Gabriel’s Social Security
earnings record suggests that he had approximately twenty
different jobs between 2002 and 2006. (Administrative Transcript
(hereinafter “Tr.”) at 98-101.)
In August, 2006, Gabriel filed the applications for benefits
that give rise to this case. In disability reports filed with
the SSA, he stated that his ability to work was limited because:
(1) he could not get around without his prosthetic leg; and (2)
“[b]listers on the bottom of [his] stump cause[d] him not to be
able to put [his] prosthetic on.” (Tr. at 1 2 7 , 165.) In
February, 2007, Gabriel was examined by D r . Ralph Wolf, a
consultative physician. The next month, D r . J. DeBorja, a non-
4
examining physician, conducted a Physical Functional Capacity
Assessment based solely on the records.
Dr. Wolf began his report with the following recitation of
Gabriel’s medical history:
This 47-year-old chef noted increasing pain at the
distal left thigh for one and one-half years prior to
examination.
The patient had received an AK amputation in 1977 for
an osteosarcoma at this site and has worn an above-the-knee prosthesis full-time since age 1 8 . The patient’s
pain increasingly interfered with his work as a chef.
Additionally, sitting work was difficult with the
prosthesis in place because of the rigid posterior
aspect of the thigh portion of the prosthesis (socket);
prolonged sitting work was also not possible without
removing the patient’s prosthesis. The patient’s pain
originally was not relieved with prosthetic
adjustments.
(Tr. at 209.) D r . Wolf’s physical examination revealed the
following:
Moderate left thigh atrophy was noted. A healed Y-
shaped posterior incision was present at the distal
stump. Slight tenderness was present distally. No
erythema2 or skin wounds were noted. Normal left hip
flexion, abduction, adduction, and rotation were
present. The patient ambulated with an antalgic gait3
2
“Erythema” is defined as “redness due to capillary
dilation.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 615 (30th ed.
2003).
3
An “antalgic gait” is a limp adopted so as to avoid pain.
See id. at 747.
5
using the above-the-knee prosthesis without the use of
cane or crutches.
(Id.) D r . Wolf gave the following diagnosis: “(1) Status
postoperative above-knee amputation for left leg osteosarcoma.
(2) Diabetes mellitus.” (Id. at 210.) He concluded his report
with the following recommendation:
The patient is disabled for continued standing and
walking work and may perform sitting work only without
his prosthetic leg because of ongoing discomfort at the
end of the left thigh stump. Some pain in the left leg
is likely to persist with prolonged weightbearing and
prolonged sitting, chronically.
(Id.)
Dr. DeBorja, a non-examining physician, provided both a
narrative case analysis and a Medical Source Statement of Ability
to do Work-Related Activities (Physical). D r . DeBorja’s case
analysis includes the following assessment:
Claimant is a 47 year old male who alleges inability to
use prosthesis as it causes blistering of his stump.
Claimant’s allegations are not fully credible. This is
primarily due to lack of evidence to support his
statement. First the physical evidence failed to
establish the presence of such blistering. There is no
evidence that he was seen or treated at all for the
allege[d] problem. On 11/17/06 when he was seen for
abdominal pain it was noted that he has a left AKA but
he maneuvers well. A CE by D r . Wolf [f]ailed to
establish the presence or residuals of that blistering.
Except for moderate atrophy of the thigh which is
expected, the [amputation site] is healed and there was
no erythema or skin wounds noted. A[s] noted he was
6
able to ambulate albeit with an antalgic gate without
need for cane or crutches. There is no evidence that
[the] prosthesis was causing much problem sitting for
the same reasons mentioned above, i.e. no evidence of
ulceration, erythema or blistering. . . .
Claimant’s impairment is severe but not listing level.
The HA 1151 provided are consistent with D r . Wolf[’s]
MSS. Except for the statement of being disabled which
is a statement reserved for the commissioner
limitations on prolonged weight bearing is adhered too.
Claimant can sit without bending the knee much. If
this were a real problem there is no reason why the
prosthetic device cannot be adjusted by a prosthetist.4
(Tr. at 211-12.)
At his hearing, Gabriel testified that he could keep his
prosthesis on for six hours a day, or up to eight hours if he
pushed i t , and that he did not wear his prosthesis at home. He
also testified that if he wore his prosthesis for six hours, he
would develop blisters on his stump that would become inflamed,
irritated, and subject to bleeding, and that if he wore his
prosthesis for six hours one day, he would have to leave it off
the next day, to allow his stump to heal. He observed that as he
has gotten older, the problem with blistering has intensified,
and that he does not heal as quickly as he did when he was
4
D r . Wolf noted that Gabriel’s pain had not been relieved
with prosthetic adjustment. (Tr. at 209.) And, at his hearing,
Gabriel testified that he was seeing a prosthetic specialist at
First Step in Manchester. (Tr. at 12.)
7
younger. In addition, he described how the design of his
prosthesis causes him pain, rashes, and blisters when he wears it
while sitting. Finally, he explained that he did not have
blisters or sores on his stump when he was examined by D r . Wolf
because he was not working at that time and, as a result, not
stressing his stump.
After the hearing, the ALJ issued a decision which included
the following findings:
3 . The claimant has the following severe impairment:
left leg amputation at the knee (20 CFR 404.1520(c) and
416.920(c)).
4 . The claimant does not have an impairment or
combination of impairments that meets or medically
equals one of the listed impairments in 20 CFR Part 404
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).
5 . After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform sedentary work
except that he is unable to effectively use left foot
controls.
1 0 . Considering the claimant’s age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR
404.1560(c), 404.1566, 416.960(c); and 416.966).
(Tr. at 39-42.)
8
The ALJ did not support his step-three determination, i.e.,
that Gabriel’s severe impairment did not meet or equal a listed
impairment, with any specific factfinding or analysis. (Id. at
40.) On the other hand, the ALJ supported his step-five
determination, i.e., that Gabriel was capable of performing jobs
that exist in significant numbers in the national economy, with a
finding that “the claimant’s statements concerning the intensity,
persistence, and limiting effects of [his] symptoms are not
entirely credible.” (Id. t 4 1 ) . Thus, the ALJ appears not to
have credited Gabriel’s statements that he suffered from pain and
developed a rash when he wore his prosthesis while sitting. As a
consequence, the ALJ did not explore the area of sedentary jobs
that require no standing or walking, i.e., jobs that an amputee
could perform without using a prosthesis. The ALJ found Gabriel
to be less than credible because “[t]here is no evidence that the
claimant has been seen or treated for the blistering, redness,
and bleeding that occurs to his stump with prolonged use of his
prosthesis.” (Id.) In addition, the ALJ declined to give
significant weight to D r . Wolf’s opinion, explaining that “there
is no evidence of treatment for the skin breakdowns the claimant
alleges.” (Id.)
9
Discussion
According to Gabriel, the ALJ’s decision should be reversed,
and the case remanded, because the ALJ: (1) incorrectly
determined that he did not have a listed impairment; (2) failed
properly to consider diabetes as part of his combination of
impairments; and (3) gave insufficient weight to the opinion of
an examining physician when determining that he had the residual
functional capacity to perform sedentary work.5
5
The parties’ statements of the issues in this case do not
line up as precisely as usually expected. According to claimant,
the issues are these:
1. Did the ALJ err when he failed to find that the
[claimant] met or equaled a listing and instead
found that the claimant had a residual functional
capacity to perform sedentary work and in doing so
gave improper weight to the only examining
doctor’s opinion on disability?
2. Did the ALJ err when he found that the claimant
had a residual functional capacity to perform
sedentary work when he failed to properly analyze
claimant’s combination of impairments, which
include[s] diabetes?
(Cl.’s Mem. (document n o . 17-2) at 4.) According to the
Commissioner, the issues are these:
1. Whether [claimant] failed to carry his burden of
proving that he had an impairment or combination
of impairments which met or equaled Listing 1.05.
2. Whether substantial evidence supports the ALJ’s
determination that [claimant] could perform
sedentary work.
3. Whether the ALJ gave proper weight to the opinion
of a physician who examined [claimant] on one
occasion.
10
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under a
disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). To be eligible for
supplemental security income, a person must be aged, blind, or
disabled, and must meet certain requirements pertaining to income
and assets.
42 U.S.C. § 1382(a). The question in this case is
whether Gabriel was under a disability during the time for which
he sought benefits.
For the purpose of determining eligibility for disability
insurance benefits,
[t]he term “disability” means . . . inability to engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment
which can be expected to result in death or which has
lasted or can be expected to last for a continuous
period of not less than 12 months.
42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A)
(setting out a similar definition of disability for determining
eligibility for SSI benefits). Moreover,
[a]n individual shall be determined to be under a
disability only if his [her] physical or mental
impairment or impairments are of such severity that he
is not only unable to do his previous work but cannot,
considering his age, education, and work experience,
(Resp’t’s Mem. (document n o . 19-2) at 2.)
11
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in which
he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for
work. . . .
42 U.S.C. § 423(d)(2)(A) (pertaining to DIB benefits); see also
42 U.S.C. § 1382c(a)(3)(B) (setting out a similar standard for
determining eligibility for SSI benefits).
In order to determine whether a claimant is disabled for the
purpose of determining eligibility for either DIB or SSI
benefits, the Commissioner is required to employ a five-step
process. See 20 U.S.C. §§ 404.1520 (DIB) and 416.920 (SSI).
The steps are: 1 ) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2 ) if the [claimant] does not have, or has not
had within the relevant time period, a severe
impairment or combination of impairments, the
application is denied; 3 ) if the impairment meets the
conditions for one of the “listed” impairments in the
Social Security regulations, then the application is
granted; 4 ) if the [claimant’s] “residual functional
capacity” is such that he or she can still perform past
relevant work, then the application is denied; 5 ) if
the [claimant], given his or her residual functional
capacity, education, work experience, and age, is
unable to do any other work, the application is
granted.
Seavey v . Barnhard, 276 F.3d 1 , 5 (1st Cir. 2001) (citing
20
C.F.R. § 416.920). The claimant bears the burden of proving that
he is disabled. See Bowen v . Yuckert,
482 U.S. 1 3 7 , 146 (1987).
12
He must do so by a preponderance of the evidence. See Mandziej
v . Chater, 944 F. Supp. 1 2 1 , 129 (D.N.H. 1996) (citing Paone v .
Schweiker,
530 F. Supp. 8 0 8 , 810-11) (D. Mass. 1982)). Finally,
In assessing a disability claim, the [Commissioner]
considers objective and subjective factors, including:
(1) objective medical facts; (2) plaintiff’s subjective
claims of pain and disability as supported by the
testimony of the plaintiff or other witness; and (3)
the plaintiff’s educational background, age, and work
experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v . Sec’y of HHS,
797
F.2d 1 9 , 23 (1st Cir. 1986); Goodermote v . Sec’y of HHS,
690 F.2d
5 , 6 (1st Cir. 1982)).
A . Step Three: Meeting a Listed Impairment
Gabriel argues that the ALJ erred, at step three, by
determining that he did not have a listed impairment. More
specifically, claimant argues that based on D r . Wolf’s findings
and opinions, and his own testimony, the ALJ should have found
that he was not able to ambulate effectively, which, in turn,
would have required a determination that his disability met or
equaled the listed musculoskeletal impairment of amputation. The
Commissioner disagrees, contending that claimant failed to carry
his burden of proving that he suffered from a “medical inability
to use a prosthetic device to ambulate effectively.”
13
At step three, “if the impairment meets the conditions for
one of the ‘listed’ impairments in the Social Security
regulations, then the application is granted.” Seavey, 276 F.3d
at 5 (citation omitted). Under the relevant regulations,
“[a]mputation (due to any cause) . . . [of] [o]ne or both lower
extremities at or above the tarsal region, with stump
complications resulting in medical inability to use a prosthetic
device to ambulate effectively, as defined in 1.00B2b” is a
listed impairment of the musculoskeletal system.
20 C.F.R. §
404, Subpt. P, Appx. 1 , § 1.05B. Those same regulations explain
that “[r]egardless of the cause(s) of a musculoskeletal
impairment, functional loss for purposes of these listings is
defined as the inability to ambulate effectively on a sustained
basis for any reason, including pain associated with the
underlying musculoskeletal impairment.” Id. § 1.00B2a (emphasis
added). The regulations provide the following relevant
definitions:
(1) Definition. Inability to ambulate effectively
means an extreme limitation of the ability to walk;
i.e., an impairment(s) that interferes very seriously
with the individual’s ability to independently
initiate, sustain, or complete activities. Ineffective
ambulation is defined generally as having insufficient
lower extremity functioning (see 1.00J) to permit
independent ambulation without the use of a hand-held
assistive device(s) that limits the functioning of both
upper extremities. . . .
(2) To ambulate effectively, individuals must be
capable of sustaining a reasonable walking pace over a
14
sufficient distance to be able to carry out activities
of daily living. They must have the ability to travel
without companion assistance to and from a place of
employment or school. Therefore, examples of
ineffective ambulation include, but are not limited t o ,
the inability to walk without the use of a walker, two
crutches or two canes, the inability to walk a block at
a reasonable pace on rough or uneven surfaces, the
inability to use standard public transportation, the
inability to carry out routine ambulatory activities,
such as shopping and banking, and the inability to
climb a few steps at a reasonable pace with the use of
a single hand rail. The ability to walk independently
about one’s home without the use of assistive devices
does not, in and of itself, constitute effective
ambulation.
Id. § 1.00B2b.
At his hearing, Gabriel testified that use of his prosthesis
for more than six hours at a time gave him blisters on his stump
that would open and bleed, and that after wearing his prosthesis
for a day, he would have to refrain from wearing it the next day,
to let the blistering heal. (Tr. at 9, 11.) He further
testified that his problem with blistering first cropped up about
fifteen years ago and has become progressively worse. (Id. at
13.) He also testified that he takes his prosthesis off at home
(id. at 1 1 , 2 3 ) , and described how his part-time work schedule –
four-hour work days, never more than two in a row – allowed him
to care for his stump and keep the blistering to a minimum (id.
at 25-26). And, in his opening statement, Gabriel’s
representative explained that D r . Wolf conducted his examination
15
at a time when Gabriel was not working and, as a result, was not
stressing his stump.
As noted above, the ALJ presented no factfinding or analysis
in support of his determination that Gabriel’s amputation did not
meet or equal a listed impairment. In response to claimant’s
appeal, however, the Commissioner contends that the evidence of
record does not support a conclusion that Gabriel was not able to
ambulate effectively. Specifically, he cites evidence concerning
Gabriel’s ability t o : (1) walk three or four blocks; (2) take
walks three times a week; (3) shop at a neighborhood convenience
store; (4) go to a social club once a week; (5) work part-time in
three- to four-hour shifts in a grocery store seafood department;
(6) take a bus to work; (7) work part-time at a concession stand
at the Verizon Wireless Arena. He also cites D r . Wolf’s
observation that Gabriel was able to ambulate, and to a medical
note – developed during an emergency room visit for abdominal
pain – indicating that Gabriel was able to maneuver well. The
Commissioner further notes D r . DeBorja’s residual functional
capacity assessment, described above. Finally, in reliance upon
Seavey, 276 F.3d at 1 0 , the Commissioner points out that any
conflicts in the evidence were for the ALJ to resolve.
16
The problem with the Commissioner’s position is that the ALJ
did not resolve the conflicts in the evidence on this issue
because, as in Audler v . Astrue, “[t]he ALJ did not identify the
listed impairment for which [Gabriel]’s symptoms fail[ed] to
qualify, nor did [he] provide any explanation as to how [he]
reached the conclusion that [Gabriel]’s symptoms are
insufficiently severe to meet any listed impairment.” 501 F.3d
446, 448 (5th Cir. 2007). As the Audler court explained, “[s]uch
a bare conclusion is beyond meaningful judicial review.”
Id.
(quoting Clifton v . Chater,
79 F.3d 1007, 1009 (10th Cir. 1996)).
The court continued:
Under the Social Security Act,
[t]he Commissioner of Social Security is directed
to make any findings of fact, and decisions as to
the rights of any individual applying for a
payment under this subchapter. Any such decision
by the Commissioner of Social Security, which
involves a determination of disability and which
is in whole or in part unfavorable to such
individual shall contain a statement of the case,
in understandable language, setting forth a
discussion of the evidence, and stating the
Commissioner’s determination and the reason or
reasons upon which it is based.
42 U.S.C. § 405(b)(1). By the explicit terms of the
statute, the ALJ was required to discuss the evidence
offered in support of Audler’s claim for disability and
to explain why she found Audler not to be disabled at
that step. Although the ALJ is not always required to
do an exhaustive point-by-point discussion, in this
case, the ALJ offered nothing to support her conclusion
at this step and because she did not, “we, as a
reviewing court, simply cannot tell whether her
decision is based on substantial evidence or not.”
17
Cook v . Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986).
Id.; see also Burnett v . Comm’r of SSA,
220 F.3d 1 1 2 , 120 (3d
Cir. 2000) (“Because we have no way to review the ALJ’s
hopelessly inadequate step three ruling, we will vacate and
remand the case for a discussion of the evidence and an
explanation of reasoning supporting a determination that
Burnett’s ‘severe’ impairment does not meet or is not equivalent
to a listed impairment. On remand, the ALJ shall fully develop
the record and explain his findings at step three . . .”)
(footnote omitted); Cox v . Astrue, Civil Action N o . 08-10400-DPW,
2009 WL 189958, at *5 (D. Mass. Jan. 1 6 , 2009) (describing the
ALJ’s duty to “consider all relevant medical and non-medical
evidence when evaluating a claimant’s disability,” to
“‘explicitly indicate’ the weight he gives to all ‘relevant
evidence,’” and to “consider the conflicts in the evidence and
resolve them”) (citations omitted).
In Audler, the court held that the ALJ’s failure to provide
findings and analysis to support a step-three determination was
not harmless. 501 F.3d at 448-49 (citing Morris v . Bowen,
864
F.2d 333, 334 (5th Cir. 1988); Mays v . Bowen,
837 F.2d 1362, 1364
(5th Cir. 1988)). Consequently, the court of appeals remanded
the case to the district court with instructions to remand to the
Commissioner. Audler,
501 F.3d at 449. As in Audler, the ALJ’s
18
error in this case is not harmless. While the ALJ determined
that Gabriel had the residual functional capacity to perform
sedentary work, that determination, no matter how well founded,
does not support the step-three determination that stump
complications from Gabriel’s amputation did not render him
disabled under listing 1.05. Moreover, given the definition of
“functional loss . . . as the inability to ambulate effectively
on a sustained basis,” 20 C.F.R. § 4 0 4 , Subpt. P, Appx. 1 , §
1.00B2a (emphasis added), any determination that Gabriel was able
to ambulate effectively on a sustained basis would have to take
into account his testimony that six hours of prosthesis use gives
him blisters and that he would have great difficulty using his
prosthesis for two six-hour days in a row. See Audler,
501 F.3d
at 448. At least on the face of i t , it would not seem that a
person who is able to use his prosthesis for no more than six
hours out of every forty-eight is able to ambulate effectively on
a sustained basis.
The ALJ did say that he found Gabriel’s testimony about
blistering less than credible because there was no evidence that
he had ever been seen by a doctor or treated for blistering or
any other side-effects of prolonged use of his prosthesis. But,
on the other hand, the ALJ did not mention, much less find
incredible, Gabriel’s explanation that he had no blistering when
19
he saw D r . Wolf because he was making a concerted effort to avoid
stressing his stump at the time of the examination.6 To make a
sustainable step-three determination, the Commissioner must
consider Gabriel’s explanation for the lack of medical
documentation of his blistering and, if appropriate, explain why
he finds that explanation to lack credibility. Then, it will be
necessary to make further findings concerning the circumstances
under which Gabriel is subject to blistering of his stump due to
prosthesis use and then determine whether, in light of those
findings, Gabriel is or is not able to ambulate effectively on a
sustained basis.
To conclude, because the ALJ presented no findings or
analysis to support his step-three determination, this case must
be remanded. Of course, it goes without saying that if Gabriel
is not disabled, he should not be awarded benefits. But, on the
other hand, if he is disabled, it seems unfair for him to be
denied benefits simply because he has found ways to minimize the
stump complications associated with wearing his prosthesis.
6
Similarly, in making his determination that Gabriel had a
residual functional capacity for sedentary work, the ALJ did not
treat as fully credible Gabriel’s statements about the effects of
wearing his prosthesis while sitting, citing the lack of
objective medical evidence of those effects. (Tr. at 41.) But,
again, the ALJ did not address claimant’s reasonable explanation
for the lack of objective medical findings: his avoidance of
situations that led to those symptoms around the time he saw D r .
Wolf.
20
B. Gabriel’s Remaining Arguments
Because this case is being remanded for a proper step-three
determination, it is unnecessary to address claimant’s remaining
arguments. See Audler, 501 F.3d at 449. Nevertheless, the
following observations may be of use to the parties on remand.
First, the ALJ does not appear to have erred in his
consideration of Gabriel’s diabetes. While the ALJ does seem to
have mischaracterized Gabriel’s HgA1C level as being in the
normal or therapeutic range, when lab reports showed an HA1C
level of 6.4 and a reference range of 4.8 to 6.0,7 that minor
factual error is of no moment. For one thing, the record also
contains a case analysis by D r . Ipakchi, presumably a non-
examining physician, who opined: “Recently diagnosed diabetes
with no evidence of end organ damage is non-severe impairment.”
(Tr. at 220.) Thus, whether or not the ALJ was correct in his
finding concerning the medical implications of a 6.4 HgA1C level,
there is substantial evidence in the record supporting a
determination that Gabriel’s diabetes was a non-severe
impairment. Moreover, while claimant criticizes the ALJ for
failing to take into account the negative consequences that
7
In their Joint Statement of Material Facts, the parties
agreed that Gabriel “was treated in the emergency room for
pancreatitis and with an abnormal glucose HbA1C4 level of 6.4
from a lab whose norms are 4.8 - 6.0” (Jt. Statement at 4
(citing T r . at 189).)
21
diabetes could have on his ability to heal, there is no evidence
in the record to that effect.8 And, in any event, whether or not
diabetes can affect a person’s ability to heal, the ALJ did make
a finding, supported by his credibility determination, that
claimant did not demonstrate that he suffered from blistering on
his stump, thus making his ability to heal immaterial in the
context of the decision the ALJ reached. In sum, it does not
appear that the ALJ committed a serious error in his
consideration of claimant’s diabetes.
Claimant also criticizes the ALJ’s reliance on D r . DeBorja’s
assessment to make his step-five determination, and also
criticizes the ALJ’s decision not to give significant weight to
Dr. Wolf’s opinion because it was not supported by the rest of
the medical evidence. Whether or not the ALJ properly declined
to give significant weight to D r . Wolf’s opinion and the quality
of the medical evidence on which that opinion is based are
questions for another day. However, as with the step-three
determination discussed above, a properly supported step-five
determination must also account for claimant’s explanation for
the lack of medical evidence of the soreness and rash he claims
to get from wearing his prosthesis while seated.
8
In his memorandum of law, claimant cites to a web site
that discusses the effects of diabetes, but no such evidence was
introduced at his hearing.
22
Conclusion
For the reasons given, claimant’s motion to remand for a new
administrative determination (document no. 17) is granted, and
the Commissioner’s motion to affirm his decision (document no.
19) is denied. Pursuant to sentence four of 42 U.S.C. § 405(g),
this matter is remanded to the ALJ for further proceedings. The
Clerk of the Court shall enter judgement in accordance with this
order and close the case.
SO ORDERED.
Steven J./McAuliffe
-Chief Judge
February 24, 2009
cc: Maureen R. Manning, Esq.
T. David Plourde, Esq.
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