UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Eugene M. Gabriel,

Claimant

v. Civil No. 08-cv-171-SM

Opinion No. 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 SSI, 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:

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2

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 15, 16 (1st Cir. 1996) (quoting Sullivan

v. Hudson, 490 U.S. 877, 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 727, 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 594, 597 (1st

Case 1:08-cv-00171-SM Document 21 Filed 02/24/09 Page 2 of 23
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

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 218, 222 (1st Cir.

1981)).1

Background

The parties have submitted a Joint Statement of Material

Facts (document no. 20). 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 abovethe-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

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4

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 127, 165.) In

February, 2007, Gabriel was examined by Dr. Ralph Wolf, a

consultative physician. The next month, Dr. J. DeBorja, a nonCase 1:08-cv-00171-SM Document 21 Filed 02/24/09 Page 4 of 23
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

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-theknee prosthesis full-time since age 18. 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.) Dr. Wolf’s physical examination revealed the

following: 

Moderate left thigh atrophy was noted. A healed Yshaped 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

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6

using the above-the-knee prosthesis without the use of

cane or crutches.

(Id.) Dr. 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). Dr. 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 Dr. 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

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4 Dr. 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

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 Dr. 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 it, 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

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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 Dr. 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.

. . . .

10. 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.) 

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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 41). 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 Dr. Wolf’s opinion, explaining that “there

is no evidence of treatment for the skin breakdowns the claimant

alleges.” (Id.)

Case 1:08-cv-00171-SM Document 21 Filed 02/24/09 Page 9 of 23
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 no. 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

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

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(Resp’t’s Mem. (document no. 19-2) at 2.)

11

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,

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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. 137, 146 (1987). 

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He must do so by a preponderance of the evidence. See Mandziej

v. Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.

Schweiker, 530 F. Supp. 808, 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 19, 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 Dr. 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.”

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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

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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 to,

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 11, 23), 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 Dr. Wolf conducted his examination

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16

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 to: (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 Dr. 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 Dr. DeBorja’s residual functional

capacity assessment, described above. Finally, in reliance upon

Seavey, 276 F.3d at 10, the Commissioner points out that any

conflicts in the evidence were for the ALJ to resolve.

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17

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.” 

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Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986).

Id.; see also Burnett v. Comm’r of SSA, 220 F.3d 112, 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 No. 08-10400-DPW,

2009 WL 189958, at *5 (D. Mass. Jan. 16, 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

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19

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. § 404, 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 it, 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

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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 Dr.

Wolf. 

20

he saw Dr. 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.

Case 1:08-cv-00171-SM Document 21 Filed 02/24/09 Page 20 of 23
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 Tr. at 189).)

21

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 Dr. Ipakchi, presumably a nonexamining 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

Case 1:08-cv-00171-SM Document 21 Filed 02/24/09 Page 21 of 23
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

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 Dr. 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 Dr. 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.

Case 1:08-cv-00171-SM Document 21 Filed 02/24/09 Page 22 of 23
23

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: Michael J. Lambert, Esq.

Rachel A. Hampe, Esq.

Thomas J. Donovan, Esq.

Case 1:08-cv-00171-SM Document 21 Filed 02/24/09 Page 23 of 23