* Effective March 31, 1995, the functions of the Secr etary of Health

and Human Services in social security cases were tr ansferred 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 subs tituted for Donna E. Shalala, Secretary of Health and Human Services, as the defe ndant 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 b ecause she was the appropriate party at the time of the underlying decision. PUBLISH
UNITED STATES COURT OF APPEALS Filed 11/12/96 TENTH CIRCUIT

R. CHRIS PUCKETT,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 95-2238

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. Li ken, Acting Chief Counsel, Region VI, Linda H. Green, Assistant Regional Couns el, Office of the General1 After examining the briefs and appellate record, th is panel has

determined unanimously that oral argument would notmaterially 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 ar gument. -2- Counsel, U.S. Social Security Administration, Dalla s, Texas, for DefendantAppellee.
Before PORFILIO, LOGAN, and LUCERO, Circuit Judges.
LOGAN, Circuit Judge.

Plaintiff R. Chris Puckett appeals the district cou rt’s judgment affirming the Secretary’s decision denying plaintiff’s applic ation for social security disability benefits. The principal issue on appeal is whe ther plaintiff’s difficulty in repairing or replacing a prosthesis for his leg qua lifies 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 applie d the correct legal standards and whether substantial evidence in the a dministrative 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 i n 1969, after he was injured in a motorcycle accident. He received a pr osthesis about a year and a half-3-

later, following three surgeries to shape his bone and stump. During the following twenty years, he successfully used the prosthes is and worked as a counselor, assistant director and community outreach worker ata drug rehabilitation center, a purchasing agent, and a graphic artist. Most rec ently, in 1989, he worked for Color Tile in sales and loading and unloading truck s. In August 1989 while unloading a ninety pound box of marble, plaintiff’s prosthesis broke. Plaintiff stopped working for Color Tile in December 1989 bec ause his prosthesis had deteriorated badly and was damaging his stump. Fro m 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 s atisfactory fit. Plaintiff’s application for disability benefits all eged disability beginning in December 1989, due to the amputation of his left le g, back pain with degenerated discs, and arthritis. The administrative law judge (ALJ) determined that although plaintiff “has severe limitations secondary to stat us 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 re levant work as a counselor,-4-

assistant director/community outreach worker, and g raphic artist. Accordingly, the ALJ concluded at step four of the controlling s equential analysis, see generallyWilliams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing fivestep analysis set out in 20 C.F.R. § 404.1520), that plaintiff was not disabled. The Appeals Council denied review. The district co urt upheld the Secretary’s decision, and plaintiff appealed.
I Plaintiff first argues that he is entitled to a fin ding 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 prevent s 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 alower extremity who have an “[i]nability to use a prosthesis effectively, witho ut obligatory assistive devices, due to one of the following: . . . 3. Stump too s hort or stump complications persistent, or are expected to persist, for at leas t 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 u nable for two years to obtain a satisfactory prosthetic fit, resulting in pain and irritation to his stump,-5-

groin, and back. The Secretary does not dispute th e allegation of an ill-fitting prosthesis. Rather, she argues that plaintiff’s pr oblems are not stump problems, as is required by the listing, but instead are prob lems with the prosthetic socket. Plaintiff counters that no distinction should be ma de between stump and socket problems under the listing, because the stump redne ss and irritation rendered the prosthesis ineffective. The issue before us concerns the proper interpretat ion 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 s howed the claimant had worn a prosthesis daily for many years . Although he asserted his amputated leg was infected and he found it difficul t to use his prosthesis, he could stand for at least two hours per day and walkone-half mile. The court held that the claimant could use his prosthesis satisfac torily even though a new type of prosthesis might be better, and that he did not mee t Listing § 1.10C.3. Gagnon did not directly address whether prosthesis fit pro blems 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 i s reasonably available to him.” That claimant’s stump had begun to “break down.” I d. at 320. The condition-6-

worsened resulting in increased pain and “multiple boil-type pressure sores on weight bearing areas and a large purple crusty areawith sharp lines of demarcation on the anterior distal portion of his shin.” Id. (quotation omitted). The claimant’s ill-fitting prosthesis could no longer b e satisfactorily adjusted. Because the claimant could not afford a new prosthe sis, his treating doctor limited him to walking with a crutch. The Secretary determ ined 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 s uitable replacement. The Ninth Circuit thought the Secretary’s interpretatio n of Listing § 1.10C.3 was that “unless the claimant can demonstrate that there exi sts no prosthesis that would properly fit his stump and enable him to walk witho ut an assistive device, he cannot satisfy the listing.” Id. It rejected this view, stating that “the question is whether the claimant, himself, can realistically ob tain such a prothesis.” Id. at 322. Because the claimant could not afford a new p rosthesis, 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 § 1.10C.3. The decision, however, appeared to turn on claimant’s poverty--his-7-

inability to afford any prosthesis--rather than tec hnical problems in repairing or replacing a prosthesis that once was satisfactory. We believe Listing § 1.10 plainly requires stump co mplications, not problems with prosthetic fit. Under that listing t he inability to effectively use a prosthesis must be due to one of four conditions: vascular disease (C.1), neurological complications (C.2), disorder of contralate ral lower extremities (C.4), or the condition at issue before us: “stump too shortor stump complications” (C.3). These conditions all relate to problems of the clai mant’s body itself. Problems with technicians’ ability to repair or replace a pr osthesis that a claimant used satisfactorily for twenty years does not fall withi n the scope of the listing. In order to meet the § 1.10C.3 listing requirement, pl aintiff must prove that he is unable to use a prosthesis effectively because of s tump 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 h e had three additional surgeries to shape his stump for a prosthesis. At no time re levant to the instant disability determination was there any indication that plainti ff needed revisions to his stump. See , e.g. , Supp. App. 140 (Dr. Allen’s notation that “no rev ision of the stump has been required”); id. at 64 (Dr. Gerald Greene’s testimony that the stump “seems to be satisfactory”). Dr. Allen’s ind ication that plaintiff always-8-

will have stump problems, even with the best manage ment, is not enough to establish an impairment meeting the listing. Accor ding to Dr. Allen, any stump problems are primarily due to an improper fit of th e prosthesis. See , e.g. , id. at 198 (plaintiff “has been unable to use his prothesi s effectively due primarily to problems with the prothesis”). See generallyBean v. Chater , 77 F.3d 1210, 1214 (10th Cir. 1995) (generally ALJ gives controlling w eight to treating doctor’s well supported opinion about the nature and severity of claimant’s impairments). No medical records reflect a stump problem independentof 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 so lved 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 possibl y include every physical impairment severe enough to prevent the claimant fr om ‘any gainful activity,’ the Secretary also established regulations for assessin g 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).2 The ALJ permissibly gave little weight to Dr. Emmett Altmann’s

conclusory opinion that plaintiff’s situation met o r equaled Listing § 1.10C.3. See Supp. App. 218; see also 20 C.F.R. § 404.1525(d).

-9- An impairment which is “medically equivalent” to th ose listed in the Appendix will suffice “if the medical findin gs are at least equal in severity and duration to the listed findin gs.” If the impairment is not listed, then the listed impairment “mos t like” the impairment is considered, and if the applicant has more t han one impairment, and none meets or equals a listed impairment, then all symptoms, signs and laboratory findings are to be consi dered in determining medical equivalency. In all events, the determ ination of medical equivalence is to be based solely on medical findin gs. 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 t hat 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 combinatio n of impairments meeting or medically equal to the requirements of Listing § 1. 10C.3.
III We need not comment extensively on plaintiff’s othe r 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 repai r of prosthetic devices. The ALJ, however, did not base her decision solely uponDr. Greene’s testimony.-10-

Rather, she considered the complete medical record, made an independent assessment of the evidence, and then made a decisio n. Plaintiff argues that the ALJ failed to give due co nsideration to his combined impairments of prosthesis fit, degenerative arthritis, back pain, depression, and a torn meniscus in his right leg, as described by Dr. Guy Fogel. This argument was not presented to the district court. “Abs ent 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 argument, because the ALJ considered Dr. Fogel’s medica l examination report along with the other medical evidence. Although Dr. Foge l indicated that plaintiff had not yet reached maximum medical improvement, that p ossibility does not alone establish disability. Plaintiff finally argues that the ALJ improperly de prived 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 examinin g him; and (3) acting in an injudicious manner. Because the ALJ had an open fi le policy, plaintiff had an opportunity to view and copy the evidence in the fi le before the hearing. See-11-

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 c ourt, 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 t o which he referred while testifying. Although it would seem good practice t o 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 plai ntiff did not raise either the cross examination or bias issue in the district cou rt. Further, plaintiff’s conclusory allegation of bias by the ALJ is without suppo rt in the administrative record, which shows that plaintiff received a full opportun ity 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.