                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-24-2000

Knepp v. Comm Social Security
Precedential or Non-Precedential:

Docket 99-3420




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Filed February 24, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3420

DURWOOD B. KNEPP,

       Appellant

v.

KENNETH S. APFEL,
Commissioner of Social Security

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 98-00091)
District Judge: Honorable Edwin M. Kosik

Argued January 24, 2000

BEFORE: GREENBERG, ROTH, and ROSENN,
Circuit Judges

(Filed: February 24, 2000)

       Warren R. Baldys (argued)
       416 Pine Street
       Suite 311
       Williamsport, PA 17701

        Attorney for Appellant
       James A. Winn
       Regional Counsel, Region III
       Patricia M. Smith
       Deputy Chief Counsel
       Shawn C. Craver (argued)
       Assistant Regional Counsel
       Social Security Administration
       OGC/Region III
       P.O. Box 41777
       Philadelphia, PA 19101

       David M. Barasch
       United States Attorney
       J. Justin Blewitt, Jr.
       Assistant United States Attorney
       Middle District of Pennsylvania
       William J. Nealon Federal Building
       235 North Washington Avenue
       P.O. Box 309
       Scranton, PA 18501

        Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter is before the court on an appeal by Durwood
B. Knepp in this social security disability benefits case.
Knepp filed an application for disability benefits on March
25, 1994, alleging that he had been disabled as a result of
an accident on October 23, 1984. Knepp last had been
insured for benefits on June 30, 1991, and therefore must
show that he was disabled on or before that date to obtain
the benefits.

There was a hearing held before an administrative law
judge on April 3, 1997, following which on May 6, 1997, the
ALJ rendered her decision denying Knepp's application.
Knepp filed a request for review of the decision of the ALJ

                                 2
on May 9, 1997, with the Appeals Council which denied his
request on November 18, 1997. Thus, the decision of the
ALJ became the final decision of the Commissioner of
Social Security.

Thereafter, Knepp filed his complaint in the district court
on January 20, 1998, seeking review of the Commissioner's
final decision. The parties filed cross-motions for summary
judgment that were assigned to a magistrate judge for a
report and recommendation. On January 26, 1999, the
magistrate judge recommended that the district court affirm
the decision of the ALJ. On February 8, 1999, Kneppfiled
an objection to the magistrate judge's report and
recommendation, but by a comprehensive memorandum
opinion and order entered March 31, 1999, the district
court granted the Commissioner's motion for summary
judgment.

The evidence in the case, as developed before the ALJ, is
as follows. Knepp sustained severe injuries as a result of a
high voltage electrocution on October 23, 1984, at his place
of work. See app. at 73. Knepp testified that the
electrocution "took off my left arm, my shoulders, down my
back, blew both cheeks off my butt, the calves off my legs,
the heels off my feet, toe off my left foot, and here on the
abdomen." Id. at 25. At the time of the accident Knepp had
been moving a welding machine when it came into contact
with an overhead 17,000 volt power source. See id. at 94.
Knepp required immediate hospitalization at North Carolina
Memorial Hospital, and later continued treatment and
rehabilitation at the Geisinger Medical Center in
Pennsylvania. See id. at 94-99 (North Carolina Memorial
Hospital report); id. at 100-141 (Geisinger Medical Center
reports).

As a result of the injuries, Knepp was awarded disability
insurance benefits from October 23, 1984 to May 31, 1986.
In the application for benefits at issue now, Knepp alleged
that he continued to be disabled as a result of the injuries
he sustained in his October 1984 accident through his last
insured date. These injuries included:

       1) loss of his non-dominant left arm (amputated
       above the elbow joint);

                               3
       2) loss of body mass in numerous areas, including the
       stomach, shoulder, back, buttocks, calves and
       heels of both feet;

       3) loss of the fifth toe on his left foot;

       4) burns to 34% of his body (with third degree burns
       over 20% of his body); and

       5) residual pain associated with the electrocution.

See Admin. Tr. at 106 (disability report). Knepp explained
that these injuries prevented him from working because the
loss of his left arm "has affected balance and the ability to
do any sort of construction work. Back injury with accident
causes daily pain. Skin grafts on feet and calves crack and
bleed." Id. Knepp testified at the hearing before the ALJ
that he had not worked since his accident on October 23,
1984. See app. at 12. He stated, "I've tried several things
and it just don't [sic] work." Id.

Knepp's last effort at working involved chores related to
his family cattle farm. Knepp testified that, in particular, he
was able to feed some of the cattle by filling a feed cart and
pushing it. See id. at 13. Knepp did state, however, that
there were times when he would need assistance. See id.
Knepp spent approximately half of his day doing work on
the farm.

Knepp testified that since 1989 he has experienced pain
in his lower back. See id. at 15-16. Knepp stated that this
pain affected his ability to walk.

       Well, there's time when you just can't hardly walk, you
       know, from the pain in the back, hip and, and legs.
       You, you got trouble walking, you got trouble sitting,
       you can't stand, I, even today, I can't stand at any
       period of time at all. I, you know, have to move a little
       or sit down or do something.

Id. at 16-17.

Knepp stated that he started treating his back pain in
earnest in 1989 and 1990 with Dr. Bainey, a chiropractor,
and Dr. Langton, a physician. See id. at 26. Knepp
continues to see Dr. Langton and Dr. Rhodes, another

                               4
chiropractor. See id. Knepp stated that he has a constant,
stabbing pain in his back. See id.

Knepp testified that he attempted to help with
housework, but his wife did 90 percent of it. See id. at 19.
Knepp also stated that he was capable of cooking meals
and dressing and bathing himself without assistance. See
id. Knepp was able to drive, and his automobile did not
require any special adjustments to accommodate his
injuries. See id. Knepp stated that on some days, however,
he could drive only a couple of miles, although on other
days he could drive for a half hour. See id. at 28. Knepp's
ability to drive depended upon the state of his back and hip
pain. See id. For relaxation, Knepp would take walks, sit
somewhere, or watch television. See id. at 20. Knepp also
stated that he was able to hunt and visit friends.

During the relevant time period Knepp took
approximately three Tylenol 3, Motrin or ibuprofen 600s
pills daily for his pain. See id. at 20. Knepp stated that
while he was not "perfectly fine" while taking the
medication, "it sure help[ed] .... it makes a big difference."
Id. at 20-21. Knepp also testified that during the relevant
time period he visited Dr. Langton three times per week for
ultrasound therapy for his back. See id. at 21.

The ALJ called Dr. Peter G. Decker ("Dr. Decker"), a
board certified internist, as a medical expert. Dr. Decker
testified based upon his review of Knepp's medical records
as he did not treat Knepp. See id. at 31. Dr. Decker
testified that Knepp's impairments arose from his accident
on October 23, 1984, and that the injuries Knepp sustained
were the result of "exit" wounds caused by the high voltage
electrocution. See id. at 32. Dr. Decker outlined Knepp's
injuries, including the amputation of the left arm above the
elbow, the trauma to the lower extremities, and the burns
of the abdomen, lower and upper back, buttocks, left
shoulder, and right leg. See id. at 32.

In response to the ALJ's question of whether Knepp's
impairments met or equaled any condition specified in the
Listing of Impairments contained at 20 C.F.R., Subpart P,
App. 1 (1999) ("Listed Impairments"), Dr. Decker stated that
no specific listing described Knepp's injuries. See id. at 34-
35.

                                5
Dr. Decker testified that the most applicable listing of
impairments was 1.13 and that 1.10 C was also relevant to
Knepp's injuries. See id. at 35-38. Listing 1.10 C and 1.13
read as follows:

       1.10 Amputation of one lower extremity (at   or above
       the tarsal region): . . .

       C. Inability to use a prosthesis effectively, with out
       obligatory assistive devices, due to one of the following:

       1. Vascular disease; or

       2. Neurological complications (e.g., loss of posit ion
       sense); or

       3. Stump too short or stump complications persiste nt,
       or are expected to persist, for at least 12 months from
       onset; or

       4. Disorder of contralateral lower extremity which
       markedly limits ability to walk and stand.

       1.13 Soft tissue injuries of an upper or lower extremity
       requiring a series of staged surgical proceedings within
       12 months after onset for salvage and/or restoration of
       major function of the extremity, and such major
       function was not restored or expected to be restored
       within 12 months after onset.

20 C.F.R., Subpart P, App. 1 (1999) (emphasis added).

Dr. Decker testified that Knepp's burn injuries were
analogous to the soft tissue injury requirement of Listed
Impairment 1.13. See app. at 35. Dr. Decker explained that
he considered the debridements and skin grafting
procedures that Knepp underwent to be staged surgical
procedures from which major functioning of the left arm
never was restored because, even with the surgical
procedures, Knepp could not be fitted with a functioning
prosthesis. See id. at 34-35. Dr. Decker further testified
that Knepp's heels could not be restored to major function
because of severe tissue loss from burns. See id . at 35-36.
Dr. Decker noted that in view of the combination of Knepp's
injuries to his left arm and both feet, he would not expect
Knepp to be able to walk or stand for long periods of time,
and because of the injuries to the buttocks, he would not

                                 6
be able to sit for prolonged periods of time. See id. at 35-
37. Dr. Decker stated that he would expect Knepp to suffer
chronic pain in both heels, back, and phantom pain in the
arm. See id. at 33.

Based upon his conclusions, Dr. Decker stated that
Knepp's condition equaled Listed Impairment 1.13 and that
Listed Impairment 1.10 was applicable because of the
number of factors present in that listing consistent with
Knepp's condition. See id. Dr. Decker's testimony was
limited to the application of the Listed Impairments. Dr.
Decker did not make a determination as to Knepp's actual
ability to perform light work that did not require use of the
non-dominant upper extremity.

The ALJ also elicited testimony from a vocational expert
concerning the availability of jobs for someone with Knepp's
limitations. The ALJ asked the vocational expert to consider
the situation of a younger individual, aged 47 to 49, with a
high school education and history of semi-skilled labor,
capable only of using his dominant right hand, and who
had to alternate between sitting and standing. See id. at 41.
It was further assumed that this individual was capable of
lifting 10 pounds. See id.

The vocational expert concluded that there would be a
significant number of jobs available to a person with the
limitations provided by the ALJ. For example, the
vocational expert testified that such a person would be able
to perform jobs such as inspector, gate guard, cashier, or
telephone solicitor. See id. at 43-44. The vocational expert
did note, however, that the number of jobs available in the
area of Pennsylvania where Knepp lived was likely to be
significantly less than the number of jobs available in the
state as a whole. See id. at 44-45.

As we mentioned, the ALJ issued her opinion on May 6,
1997. See app. at 71. She began her opinion by noting that
Knepp already had received disability benefits between
October 23, 1984, the date of his injury, and May 31, 1986.
See id. at 71. Accordingly, the ALJ focused her inquiry on
the period beginning June 1, 1986, and ending on June 30,
1991, the date Knepp last met the insured status
requirements. See id.

                               7
Pursuant to her application of the required five-step
analysis under the applicable regulations, the ALJfirst
determined that Knepp had not been engaged in
substantial gainful activity since June 1, 1986. See id. at
72. Second, the ALJ determined that the injuries resulting
from Knepp's electrocution constituted a severe
impairment. See id. at 73.

The third step of the regulation required the ALJ to
determine whether Knepp suffered from an impairment, or
combination of impairments, that either met or equaled a
Listed Impairment. See id. The ALJ determined that,
despite the testimony of Dr. Decker, Knepp did not suffer
from an impairment or combination of impairments that
either met or equaled a Listed Impairment. See id. The ALJ
determined that Dr. Decker had not understood properly
the scope of the provisions he cited as establishing
disability on the part of Knepp. See id. at 74.

The ALJ then proceeded to the fourth and fifth steps of
the analysis. At the fourth step, the ALJ determined that
Knepp was unable to perform his past relevant work as a
boilermaker. See id. at 75. At the fifth step, the ALJ
concluded that Knepp had the residual functional capacity
to perform work that does not require bi-lateral dexterity or
use of the left arm; does not require lifting more than 10-20
pounds; allows for a sit/stand option; and does not require
prolonged sitting, standing, or walking. See id . The ALJ
determined that Knepp was not disabled because there
were sufficient jobs available in the national economy
within the limitations described above. See id .

The ALJ, in making her determination that Knepp was
not disabled, took note of the scope of Knepp's injuries. See
id. at 76-78. She observed that the treatment notes for
Knepp through 1986 reflected that Knepp had healed well,
began to regain body weight, and had begun to increase his
activity level. See id. at 76. Further, the ALJ noted that
while Knepp had received treatment for lower back pain
beginning in 1990, such treatment consisted of
conservative ultrasound pain management in 1990 and
1991 with virtually no medical intervention of any type
from 1992 through 1995. See id. Accordingly, the ALJ
determined that the evidence in the record did not support

                                8
a conclusion that Knepp was disabled before June 30,
1991. See id. at 76-77.

The ALJ found that Knepp's subjective complaints of pain
were generally credible, but overstated to the extent Knepp
claimed he had been unable to perform any work since
June 1, 1986. See id. at 77. She noted that Knepp had
received only conservative treatments during the period at
issue, and no diagnostic testing or physical examinations
were conducted prior to 1996. See id. Further, Knepp's
daily activities supported the conclusion that he was
capable of working during the period at issue. See id.
Accordingly, Knepp was found not to have been disabled
during the period beginning June 1, 1986 and ending June
30, 1991. See id. at 80. Thus, the ALJ denied the benefits.

II. DISCUSSION

While we exercise plenary review with respect to the order
for summary judgment, our review of the ALJ's decision is
more deferential as we determine whether there is
substantial evidence to support the decision of the
Commissioner. See Plummer v. Apfel, 186 F.3d 422, 427 (3d
Cir. 1999). Consequently, we are bound by the ALJ's
findings of fact if they are supported by substantial
evidence in the record. See id. We, however, exercise
plenary review of all legal issues in this case. See
Schaudeck v. Comm'r, 181 F.3d 429, 431 (3d Cir. 1999).

42 U.S.C. S 423(a)(1)(D) provides for the payment of
benefits to persons who suffer from disabilities who have
made contributions to the disability insurance program. In
particular, 42 U.S.C. S 423(d)(1)(A) provides for the payment
of benefits when a claimant establishes his or her 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. SS 423(d)(2)(A) then explains that an individual

       shall be determined to be under a disability only if his
       [or her] physical or mental impairment or impairments

                                9
       are of such severity that he [or she] is not only unable
       to do his [or her] previous work but cannot,
       considering his [or her] age, education and work
       experience, engage in any other kind of substantial
       gainful work which exists in the national economy....

In accordance with authority granted under 42 U.S.C.
S 405(a), the Commissioner has promulgated the
regulations applied by the ALJ to give effect to, and further
define, the provisions of the Act. See 20 C.F.R. SS 404.1520,
416.920 (1999). We reiterate that the regulations provide
for the five-step sequential evaluation of an individual's
claim for disability benefits that the ALJ applied in this
case. See Williams v. Sullivan, 970 F.2d 1178, 1180 (3d Cir.
1992).

In step one, the Commissioner must determine whether
the claimant currently is engaging in substantial gainful
activity. 20 C.F.R. SS 404.1520(a), 416.920(a) (1999). 20
C.F.R. SS 407.1572, 416.972 (1999). If a claimant is found
to be engaged in substantial gainful activity, his claim of
disability will be denied, regardless of the claimant's
medical condition. See Bowen v. Yuckert, 482 U.S. 137,
140, 107 S.Ct. 2287, 2291 (1987) (citing 20 C.F.R.
S 404.1520(b)). As mentioned, the ALJ determined that
Knepp had not engaged in any substantial gainful activity
during the period at issue. This determination is not
disputed.

If the claimant is not engaged in substantial gainful
activity, the analysis of the claim proceeds to step two. Step
two, commonly known as the "severity regulation," involves
a minimum threshold determination of whether the
claimant is suffering from a severe impairment. See 20
C.F.R. S 404.1520(c), 416.920(c) (1999). An impairment is
considered severe if it is "of a magnitude sufficient to limit
significantly the individual's `physical or mental ability to
do basic work activities.' " Santise v. Schweiker, 676 F.2d
925, 927 (3d Cir. 1982) (quoting 20 C.F.R. S 404.1520(c)
(1999)). The ability to do basic work activities is defined as

       `the abilities and aptitudes necessary to do most jobs.'
       Such abilities and aptitudes include `[p]hysical
       functions such as walking, standing, sitting, lifting,

                               10
       pushing, pulling, reaching, carrying, or handling';
       `[c]apacities for seeing, hearing, and speaking';
       `[u]nderstanding, carrying out, and remembering
       simple instructions'; `[u]se of judgment';`[r]esponding
       appropriately to supervision, co-workers, and usual
       work situations'; and `[d]ealing with changes in a
       routine work setting.'

Yuckert, 482 U.S. at 141, 107 S.Ct. at 2291 (quoting 20
C.F.R. S 404.1521(b) (1999)). An ALJ only considers medical
evidence in step two, without regard to vocational factors
such as the claimant's age, education, or work experience.
See id. (citing 20 C.F.R. SS 404.1520(c), 416.920(c) (1999)).
The ALJ determined that Knepp suffered from "severe"
impairments, as that term is defined by the Act, and that
finding is not in dispute.

If, as here, the claimant is not engaged in substantial
gainful activity and has a severe impairment, the evaluation
proceeds to step three. Step three requires a determination
of "whether the impairment is equivalent to one of a
number of Listed Impairments that the Commissioner
acknowledges are so severe as to preclude substantial
gainful activity." Yuckert, 482 U.S. at 141, 107 S.Ct. at
2291. "If the impairment meets or equals [a] [L]isted
[I]mpairment [ ], the claimant is conclusively presumed to
be disabled." Id., 107 S.Ct. at 2291; see also 20 C.F.R.
SS 404.1520(d), 416.920(d) (1999).

If a claimant does not suffer from a Listed Impairment or
its equivalent, the analysis proceeds to steps four and five.
Under these steps, the Commissioner "must determine
whether the claimant retains the ability to perform either
his [or her] former work or some less demanding
employment." See Sullivan v. Zebley, 493 U.S. 521, 535,
110 S.Ct. 885, 893-94 (1990) (internal quotation marks
omitted); see also, Williams, 970 F.2d at 1187.

On this appeal, Knepp challenges only the conclusion
that there was substantial evidence in the record to support
the finding of the ALJ that he did not meet or equal the
requirements of Listed Impairment 1.13 or 1.10. Knepp
does not assert that he should have been found disabled
pursuant to any other Listed Impairment. In addition,

                               11
Knepp does not challenge the findings of the ALJ relevant
to his ability to perform the requirements of a limited, but
sufficiently available, number of light work positions.
Accordingly, Knepp can succeed on this appeal only if we
find that the conclusions of the ALJ relevant to Listed
Impairments 1.13 and 1.10 are unsupported by substantial
evidence or were contrary to the law. Thus, this appeal is
limited to a challenge to the ALJ's step three determination.

In view of the limited nature of Knepp's appeal, he sets
forth the sole issue for our consideration as follows:

       Was it improper for the Commissioner to reject the
       testimony of Peter G. Decker, MD, a medical expert,
       who testified at the hearing before the Administrative
       Law Judge, that the Appellant's impairment was so
       severe that it equaled the severity set forth in the
       Listing of Impairments.

Appellant Br. at 1. As we demonstrate below, the resolution
of this question in the circumstances here turns primarily
on questions of law and not on questions of fact. Thus, we
are exercising plenary review.

The Listed Impairments define impairments that prevent
an adult, regardless of age, education, or work experience,
from performing any gainful activity. See Zebley , 493 U.S.
at 532, 110 S.Ct. at 892. Thus, as we have indicated, if a
claimant's impairments meet or equal a Listed Impairment
disability is conclusively established and the claimant is
awarded benefits.

Knepp, citing 20 C.F.R. S 404.1526(c) (1999), argues that
only a physician designated by the Commissioner can
decide the question of medical equivalency. See Appellant
Br. at 9. This argument misapprehends 20 C.F.R.
S 404.1526. The ultimate decision concerning the disability
of a claimant is reserved for the Commissioner. See 20
C.F.R. S 404.1527(e) (1999).

The regulations provide the following guidelines for
determining if a claimant's impairments meet or equal a
Listed Impairment.

       (a) How medical equivalence is determined. We will
       decide that your impairment(s) is medically equivalent

                               12
       to a listed impairment in Appendix 1 if the medical
       findings are at least equal in severity and duration to
       the listed findings. We will compare the symptoms,
       signs, and laboratory findings about your
       impairment(s), as shown in the medical evidence we
       have about your claim, with the medical criteria shown
       with the listed impairment. If your impairment is not
       listed, we will consider the listed impairment most like
       your impairment to decide whether your impairment is
       medically equal. If you have more than one
       impairment, and none of them meets or equals a listed
       impairment, we will review the symptoms, signs, and
       laboratory findings about your impairments to
       determine whether the combination of your
       impairments is medically equal to any listed
       impairment.

       (b) Medical equivalence must be based on medical
       findings. We will always base our decision about
       whether your impairment(s) is medically equal to a
       listed impairment on medical evidence only. Any
       medical findings in the evidence must be supported by
       medically acceptable clinical and laboratory diagnostic
       techniques. We will also consider the medical opinion
       given by one or more medical or psychological
       consultants designated by the Commissioner in
       deciding medical equivalence. (See S 404.1616.)

       (c) Who is a designated medical . . . consultant. A
       medical . . . consultant designated by the
       Commissioner includes any medical . . . consultant
       employed or engaged to make medical judgments by
       the Social Security Administration, the Railroad
       Retirement Board, or a State agency authorized to
       make disability determinations. A medical consultant
       must be a physician.

20 C.F.R. S 404.1562 (1999).

In rejecting the testimony of Dr. Decker concerning the
applicability of Listed Impairment 1.13, the ALJ stated:

       I am unable to accept Dr. Decker's testimony that the
       claimant's condition continues to equal the severity
       requirements of Listing 1.13 in the light of my re-

                               13
       examination of the medical record. In the present case,
       the claimant's left arm required amputation
       immediately following his injury. He did not undergo a
       series of surgical procedures and restoration of
       function was clearly not anticipated.

App. at 73-74.

While we seem not to have addressed the proper scope of
Listed Impairment 1.13, the ALJ's construction of that
listing was consistent with that of the courts of appeals
that have addressed the issue. The Court of Appeals for the
Seventh Circuit has determined that Listed Impairment
1.13 is:

       directed to the loss of the use of one extremity, not in
       itself disabling under the regulations, where restoration
       of function will require repeated staged surgical
       procedures over a lengthy period, thus making an
       individual who would otherwise be capable of
       substantial gainful employment unavailable for work
       because of these repeated surgical procedures.

Waite v. Bowen, 819 F.2d 1356, 1359 (7th Cir. 1987). The
Court of Appeals for the Sixth Circuit has agreed with this
interpretation, concluding that Listed Impairment 1.13 is
meant to address a claimant who is rendered disabled as a
result of being unavailable for employment during the
course of the staged surgical procedures and recovery
periods. See Lapinksy v. Secretary, 857 F.2d 1071, 1073
(6th Cir. 1988). Accordingly, the courts construe Listed
Impairment 1.13 as applicable only to persons undergoing
surgical procedures designed to restore functionality.

In Waite, the court considered a claimant whose left arm
had been paralyzed completely and permanently in a
motorcycle accident. See Waite, 819 F.2d at 1358. The
claimant also had suffered leg injuries that had healed. See
id. The claimant argued that his paralyzed left arm met or
equaled the requirements of Listed Impairment 1.13. See
id. at 1359. The court, however, determined that Listed
Impairment 1.13 was not met or equaled by simply any
form of loss of use of an extremity for 12 or more months.
The court there concluded that Listed Impairment 1.13 was

                               14
established to allow a period of recovery for surgical
restoration of an impaired limb. See id. at 1360.

This interpretation of Listed Impairment 1.13 is
 833<!>reasonable given its emphasis on staged surgical

proceedings and the restoration or salvage of functionality.
Further, Listed Impairments 1.09 and 1.10 directly address
amputations. Listed Impairment 1.09 requires the loss of
both hands, both feet, or one hand and one foot in order for
a claimant to be found conclusively disabled. See 20 C.F.R.,
Subpart P., App. 1 (1999). Listed Impairment 1.10 allows
for a finding of disability upon the amputation of a lower
extremity above the tarsal region. See id. Any reading of
Listed Impairment 1.13 that would allow for a finding of
disability upon the amputation of one extremity would
place 1.13 in conflict with 1.09,1 a provision expressly
addressing amputation, and would render 1.13 and 1.10
mere redundancies. Consequently, we are convinced that
the Courts of Appeals for the Sixth and Seventh Circuits
have advanced a construction that provides the proper
understanding of Listed Impairment 1.13.

Accordingly, as with the claimant in Waite, Knepp could
be found to meet or equal Listed Impairment 1.13 only if,
during the time period at issue, which ended on June 30,
1991, his impairments, when viewed as a whole, met or
equaled surgical procedures designed to restore the
functioning of his left arm. The medical record does not
contain any facts which could support such a conclusion.
Review of the medical records demonstrates that Knepp did
not undergo any surgical proceedings during the period
beginning June 1, 1986, and ending June 30, 1991, nor
has Knepp pointed to any evidence of a procedure
equivalent to restorative surgery that occurred during the
_________________________________________________________________

1. For example, Listed Impairment 1.09 clearlyfinds that only the
amputation of both hands, or the amputation of one hand and one foot
are severe enough to warrant a presumption of disability. If Listed
Impairment 1.13 were to be read as Knepp suggests, a claimant could be
found to be presumptively disabled upon the loss of only one hand if the
claimant had undergone operations to allow for thefitting of a
prosthesis. Such a reading of Listed Impairment 1.13 would be
inconsistent with Listed Impairment 1.09, a provision directly addressing
the effects of amputation.

                               15
time period at issue. Rather, Knepp underwent the
debridements and skin grafting procedures prior to that
period.

Knepp's arguments that his impairments meet or equal
Listed Impairment 1.13 all rest upon a misapprehension of
the scope of that provision. For example, Knepp argues that
the ALJ erroneously relied upon the fact that all of Knepp's
surgical procedures occurred immediately following his
accident, during a period for which he was provided
disability benefits, and not during the period here at issue.
See Reply Br. at 2-3. Given that Listed Impairment
addresses only those situations in which the surgical
procedures themselves contribute to the claimant's inability
to work, the fact that Knepp did not undergo any surgical
procedures after June 1, 1986, is determinative.

Knepp also argues that the ALJ should not have
disregarded Dr. Decker's opinion because there are no
medical opinions in the record contrary to his position. See
Appellant Br. at 13-14; Reply Br. at 3. Contrary to the
assertion of Knepp, the fact that the ALJ disregarded the
opinion of Dr. Decker does not demonstrate that the ALJ
simply was asserting her own medical opinion over that of
the medical expert. Rather, the ALJ in this case properly
did not accept Dr. Decker's opinion because the doctor
asserted that Knepp's impairments met or equaled a Listed
Impairment that is simply inapplicable to this matter.

Further, Dr. Decker also appears to have misapplied
Listed Impairment 1.10 C. Dr. Decker asserted, and Knepp
now argues, that 1.10 C is relevant because Knepp suffered
injuries to both of his heels, experienced balance difficulties
as a result of the loss of his left arm, and was not able to
use a prosthesis effectively. See Appellant Br. at 15. Listed
Impairment 1.10, however, expressly is concerned with the
amputation of a lower extremity. See 20 C.F.R., Subpart P,
App. 1. The inability to use a prosthesis, as contemplated
by 1.10 C, clearly is meant to be a prosthesis designed to
replace the amputated lower extremity, and not simply
trouble with any prosthesis. In addition, we find no support
in Dr. Decker's testimony, or elsewhere in the medical
record, for the conclusion that Knepp's impairments to his
heels and calves equaled the amputation of a lower

                               16
extremity. It would appear that, as a matter of law, Listed
Impairment 1.10 has no applicability to the instant action.

Knepp essentially argues throughout his submissions
that a decision concerning the applicability of a Listed
Impairment is a medical decision. But that argument
cannot overcome the circumstance that the medical expert
attempted to apply provisions of the regulations that were
not applicable to this case as a matter of law.

III. CONCLUSION

For the reasons we have stated, the order of the district
court entered March 31, 1999, granting summary judgment
will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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