Frank DeCHIRICO, Plaintiff-Appellant, v. John J. CALLAHAN, Acting Commissioner of the Social Security Administration, Defendant-Appellee.
No. 248, Docket 97-6026.
United States Court of Appeals, Second Circuit.
Argued Sept. 26, 1997. Decided Jan. 26, 1998.
134 F.3d 1177
2. Admission of King‘s Testimony against King
Though Judge McKenna ruled that King‘s testimony would be admissible against King, he concluded that its admission at the forthcoming joint trial would encounter Bruton objections, the precise resolution of which would depend on which portions of the prior testimony the Government offered. However, with respect to the four answers that appeared to shift responsibility to DKP, he ruled that Bruton would bar their use against the corporation.
For substantially the same reasons that King‘s testimony encounters no valid Confrontation Clause objection when offered against his corporation, it also encounters no valid Bruton objection. King and his wholly owned corporation are alter egos for both purposes. Bruton serves to protect a defendant from prior accusations by a currently tried co-defendant that the defendant had no opportunity to cross-examine. The rationale of that protection is inapplicable where the co-defendant is accusing itself, albeit in its corporate, rather than its individual, capacity.
Conclusion
The order of the District Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Stanley N. Alpert, Assistant United States Attorney, New York City, for Defendant-Appellee.
Judge MESKILL concurs in part and dissents in part in a separate opinion.
CALABRESI, Circuit Judge:
Is a leg amputation a per se disabling condition under the Social Security Regulations,
Background
Frank DeChirico is a thirty-eight year old man who received disability benefits for over nine years following a 1981 motorcycle accident in which he sustained injuries that ultimately resulted in the amputation of the lower portion of his left leg. He now wears a prosthetic limb. In 1990, DeChirico‘s benefits were terminated because he was incarcerated. See
Following a hearing, the administrative law judge (“ALJ“) determined that DeChirico was not disabled, and denied his application. The ALJ made the following factual findings: (1) DeChirico had not worked since the late 1970‘s (prior to his accident). (2) He suffered from a “severe” impairment---the leg amputation--but “[did] not have an impairment or combination of impairments listed in, or medically equal to one listed in” the Social Security regulations defining per se disabling conditions.1 (3) His “subjective testimony as to ‘disabling’ impairment [was] not supported by objective medical evidence and [was] therefore not credible in establishing [a] ‘disability‘.” (4) He has the residual functional capacity “to perform the full range of ‘sedentary’ and ‘light’ work.” (5) His age falls into the category of “younger” under the regulations. (6) He has a high school equivalency degree. And (7) he is not “disabled.”
The Appeals Council denied DeChirico‘s request for review, thereby making the ALJ‘s ruling the final decision of the Commissioner. See Perez v. Chater, 77 F.3d 41, 44 (2d Cir.1996);
Discussion
I. The Applicability of Listing § 1.10
The Social Security regulations establish a five-step process for evaluating disability claims:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982).
The ALJ in this case determined that DeChirico was not performing substantial gainful activity and that his amputation constituted a “severe impairment.” Thus, DeChirico‘s claim survived the first two steps of the inquiry. The ALJ concluded, however, that DeChirico could not be deemed per se disabled at step three because his severe impairment did not qualify under Listing § 1.10. Having so determined, the ALJ then went on to find that DeChirico had no past relevant work (step four), but that he could perform “sedentary” or “light” work (step five). DeChirico argued on appeal to the district court, and again in this court, that the ALJ erred in failing to find him per se disabled at step three, which would have made him eligible for benefits regardless of steps four and five.
The Social Security regulations list certain impairments, any of which is sufficient, at step three, to create an irrebuttable presumption of disability. See
Persons who, like DeChirico, have leg amputations at or above the tarsal region (i.e., the ankle) are disabled per se if they meet any of a number of other criteria specified in the regulations. See
C. Inability to use a prosthesis effectively, without obligatory assistive devices, due to one of the following:
...
3. Stump too short or stump complications persistent, or are expected to persist, for at least 12 months from onset....
Listing § 1.10.C.
DeChirico testified at his disability hearing that, because of ongoing problems wearing his prosthesis, he had difficulty standing and could not walk at all without a cane--which qualifies as an “assistive device.” See, e.g., Walker v. Bowen, 826 F.2d 996, 998 (11th Cir.1987) (quoting medical evidence treating a cane as an assistive device);
According to DeChirico, his health problems at the time he sought disability coverage included, inter alia, stump scarring and intermittent inflammation or “skin breakdown” on the stump. He further argues that most or all of these difficulties resulted from prosthesis intolerance (the inability to obtain a prosthesis that fits properly and causes no injury to the wearer). The Commissioner responds that there was ample evidence in the record to support the ALJ‘s decision that DeChirico could use his prosthesis effectively, and hence that DeChirico was not per se disabled. DeChirico denies that the evidence
Although we have not had occasion to interpret Listing § 1.10, the Ninth and Tenth Circuits each have done so.2
Gamble v. Chater, 68 F.3d 319 (9th Cir.1995), was the first case to analyze the relevant portions of the listing. Gamble was an amputee who had suffered from various stump complications, including skin breakdown and pressure sores. Id. at 320. The medical evidence was clear that Gamble‘s ill-fitting prosthesis had caused these problems and had left him unable to walk without crutches (“assistive devices“). See id. A new prosthesis had been prescribed to treat the complications, but was not reasonably available to Gamble. The ALJ concluded that Gamble‘s inability to get a suitable prosthesis did not constitute “stump complications” under Listing § 1.10, and denied the application.
The Court of Appeals for the Ninth Circuit reversed. It held that Gamble qualified under Listing § 1.10 because his inability to obtain the new prosthesis forced him to continue wearing one that did not fit. And, for that reason, he could not use his prosthesis effectively without crutches. The court concluded 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 is reasonably available to him,” id. at 322, regardless of whether “somewhere on the planet there exists a prosthesis that the claimant could use,” id. Since the Commissioner offered “no legitimate reason or explanation why an amputee who is unable to obtain a prosthesis should be treated differently from any other disabled person who [is] entitled to benefits because he] cannot obtain the treatment, therapy, or medical device that he needs,” id., the court reversed and remanded with instructions that Gamble be awarded benefits.
In Puckett v. Chater, 100 F.3d 730 (10th Cir.1996), the Court of Appeals for the Tenth Circuit took a somewhat different view of Listing § 1.10. The specific ground on which that Court rejected the disability claim in Puckett seems to have been that, on the particular facts of the case, the court did not believe that the claimant (who had used a prosthesis successfully for twenty years until it broke) could not obtain an adequate replacement. In reaching that conclusion, however, the court also stated that:
We believe Listing § 1.10 plainly requires stump complications, not problems with prosthetic fit.... [The listed] conditions all relate to problems of the claimant‘s body itself. Problems with technicians’ ability to repair or replace a prosthesis that a claimant used satisfactorily for twenty years does not fall within the scope of the listing.
We read the Puckett court‘s statement to mean that the inability to obtain a well-fitting prosthesis is not disabling per se unless it either results from or leads to a medically observable condition in the wearer‘s body. This view is wholly consistent with Gamble, for in Gamble the claimant‘s old prosthesis caused pressure sores and skin breakdown.
We believe that this view is the correct one, and, indeed, is the only one that comports with the language of Listing § 1.10.C.3. That listing defines “stump complications” as one of the conditions that may qualify as
Even if we were not persuaded that Listing § 1.10 specifically covers individuals who suffer complications because of their inability to obtain a properly fitting prosthesis, we would nonetheless conclude that such a condition is equal to a listed impairment, and hence is also disabling per se. The Social Security regulations provide that, “[i]f you have an impairment(s) which meets the duration requirement and is listed in appendix 1 or is equal to a listed impairment(s), we will find you disabled without considering your age, education, and work experience.”
II. The ALJ‘s Finding of No Disability Per Se
Reviewing the evidence in the record in light of Listing § 1.10‘s requirement that a prosthesis fit problem must either be caused by or result in a medically observable condition in the wearer, we uphold the ALJ‘s factual findings and affirm the denial of benefits. See Keefe v. Shalala, 71 F.3d 1060, 1062 (2d Cir.1995) (the findings of fact in a disability determination must be upheld if they are supported by substantial evidence).
To be sure, there is substantial evidence in the record that DeChirico, since at least September 1990, has had significant problems wearing a prosthesis. In particular, DeChirico‘s prison record, the recommendations of treating physicians Albert Fleischer, Stanley Soren, and Stephen Nadler, and the report of examining physician Joseph Fulco of the New York State Department of Social Services Office of Disability Determinations would certainly have been sufficient to support a finding that DeChirico was disabled per se. But there was also substantial evidence in the record from which the ALJ could have reasonably concluded that a properly fitting appliance would have solved DeChirico‘s problems.
For example, Dr. Soren stated that DeChirico was disabled pending receipt of a new prosthesis. This comment can be taken to mean that Dr. Soren believed that a suitable prosthesis was reasonably available to DeChirico, and that receipt of such an appliance would solve DeChirico‘s stump problems. This fact is especially germane because Dr. Soren also reported that DeChirico‘s stump was not inflamed. Moreover, the record does not indicate whether DeChirico received the new prosthesis Dr. Soren prescribed, so there is no evidence that DeChirico tried a substitute prosthesis unsuccessfully.
Similarly, from September 1990 to October 1991, there is no reference in DeChirico‘s prison medical records to any problems with his prosthesis or stump. In the absence of testimony or other evidence that DeChirico‘s difficulties continued throughout that period, the ALJ could reasonably have inferred that DeChirico used a prosthesis effectively for thirteen months. And DeChirico offered no testimony, medical report, or other evidence to show that his stump complications persist-
Specifically, DeChirico received a new prosthesis sometime before September 1990. At that time, according to prison health service medical records, the “new” prosthesis was “definitely too small on thigh & too large at calf---needs adjust. if possible.” There is no indication whether any such adjustments were successfully made. But the prison medical records, which detail no further complaints by DeChirico until October 9, 1991, are consistent with the conclusion that the adjustments were in fact made and were successful. They therefore can also be taken as support for a finding that, at the later times when DeChirico did complain, his complications could have been resolved by fitting him with an effective prosthesis. There are, moreover, no grounds for believing that such an appliance was not reasonably available to him.
Under the circumstances, we cannot say that the ALJ‘s finding that DeChirico did not have a listed impairment (or its equivalent) was unsupported on the record. This does not mean, of course, that DeChirico is barred from filing a new application for benefits, supported by evidence of prosthesis-induced stump complications sufficient to lead--or indeed require--an ALJ to find him to have a per se disabling condition.
III. Failure to Subpoena Prior Disability File
DeChirico also claims that, in light of our decision in Mimms v. Heckler, 750 F.2d 180 (2d Cir.1984), reversal is warranted because the ALJ failed to requisition or subpoena the disability file for the nine-year period when DeChirico had previously received disability benefits. Mimms involved a former truck driver who had been paid benefits from 1977 to 1980. Those benefits terminated when Mimms voluntarily attempted to go back to work. He was soon fired, however, because he was unable to perform his job duties. Accordingly, he submitted a new application for benefits, but that application was denied. He pursued his administrative remedies, pro se, and the ALJ denied his claims. On appeal, we reversed and remanded, concluding that the ALJ had improperly disregarded Mimms’ testimony concerning disabling pain. In reaching that conclusion, we also stated:
In a case such as this, where the claimant was unrepresented by counsel in the proceedings before the ALJ, “a duty devolves on the hearing examiner to scrupulously and conscientiously probe into, inquire of, and explore all the relevant facts surrounding the alleged right or privilege.” After a careful review of the transcript of the disability hearing conducted by the ALJ, we find that he failed to adequately develop the record so as to provide Mimms with a full and fair hearing. Specifically, despite the fact that the claimant testified that he had been determined disabled in June of 1977 and had received disability benefits until October 1980, when he voluntarily attempted to resume gainful employment, the ALJ failed to ask one question of the claimant about his prior disability and its relationship to the disability claim he was now pursuing before the ALJ. The existence of a prior established disability is highly relevant when the nature of that disability appears to be the very same cause of the alleged disability then under examination.
Id. at 185 (citation omitted). DeChirico argues that “[t]he holding of Mimms, applied to the facts of this case, would require at the least a remand with directions to the agency to obtain and consider the records concerning the claimant‘s prior nine year receipt of benefits,” because those records were “highly relevant” to both step three and step five of the evaluation of his current claim.
The Commissioner counters that the old disability file would shed no additional light on DeChirico‘s claims, and asserts that the ALJ‘s review of the medical records from DeChirico‘s period of incarceration was sufficient to establish his prior medical history. In so arguing, the Commissioner relies in part on Social Security Administration guidelines providing that “an ALJ May Not Need the Prior Claim File” when “[a]t least four years have elapsed between the date of the
DeChirico is correct that, by statute, the ALJ was required not only to develop DeChirico‘s complete medical history for at least the twelve-month period prior to the filing of his application, but also to gather such information for a longer period if there was reason to believe that the information was necessary to reach a decision. See
Nevertheless, this case presents very different circumstances from Mimms. Mimms involved a pro se claimant whereas DeChirico was represented by counsel in the administrative proceedings. Pursuant to Social Security regulations, a party “who wish[es] to subpoena documents or witnesses must file a written request for the issuance of a subpoena with the administrative law judge .... stat[ing] the important facts that the witness or document is expected to prove; and indicat[ing] why these facts could not be proven without issuing a subpoena.”
The statutory duty of an ALJ to issue subpoenas or take other actions sua sponte as necessary to develop the record applies, of course, to all claimants, see
IV. Sufficiency of the Evidence of Residual Functional Capacity
Finally, DeChirico argues that there was insufficient evidence to permit a determination at step five that he was capable of performing sedentary or light work. But this conclusion by the ALJ was based on the reports of DeChirico‘s treating physicians. For example, Dr. Fleischer stated that, if DeChirico used the correct prosthesis and was careful, he could go to school or do a sedentary job. Similarly, Dr. Nadler reported that DeChirico could “tolerate light manual activities for a limited period of time.” All this and other medical evidence in the record is sufficient to support the ALJ‘s factual findings at step five. See Keefe, 71 F.3d at 1062.
Conclusion
We have considered all of DeChirico‘s arguments. On the administrative record before us, the district court‘s affirmance of the ALJ‘s ruling is affirmed. DeChirico is, of course, free to file a new application for benefits, pursuant to the relevant regulations, and to present new evidence of his disability at that time.
MESKILL, Circuit Judge, concurring in part and dissenting in part:
I join in the majority‘s holding that the Commissioner‘s decision is supported by substantial evidence, but write separately to dis-
In Gamble, the claimant suffered stump complications caused by an ill-fitting prosthesis. The court held that notwithstanding the existence of a properly fitting replacement prosthesis, the claimant had demonstrated an “[i]nability to use a prosthesis effectively” because the well-fitting replacement prosthesis was unaffordable and therefore not “reasonably available.” Here, although neither party has argued or briefed the merits of Gamble‘s construction of Listing § 1.10.C., the majority in dicta nonetheless expresses its agreement with Gamble. DeChirico‘s sole argument under Listing § 1.10.C. was that the injuries resulting from his use of six prostheses demonstrated that he could not use any prosthesis without injury. DeChirico did not argue in the alternative that, in the event the court determined that a serviceable prosthesis did exist, he nevertheless would meet Listing § 1.10.C. because the replacement prosthesis was not “reasonably available.” Accordingly, the Commissioner, responding only to DeChirico‘s arguments and unaware that the majority would consider this unaddressed issue, did not have the opportunity to contest the merits of Gamble.
I, therefore, would limit the majority‘s discussion of Gamble to the issues actually raised in this case, namely, whether a claimant‘s inability to use a prosthesis without causing himself injury constitutes a stump complication under Listing § 1.10.C., and whether substantial evidence supported the Commissioner‘s decision that DeChirico could use a prosthesis effectively. The language of Listing § 1.10.C. does not expressly limit our assessment of a claimant‘s ability “to use a prosthesis effectively” to those prostheses that are “reasonably available.” Nor is it clear that this limitation reflects sound policy. See Social Security Acquiescence Ruling 97-2(9) (acquiescing to Gamble only in the Ninth Circuit). I prefer to refrain from supporting this construction until the issue of availability has been squarely raised in this Circuit. Notably, the majority expressly reminds DeChirico that he is not barred from filing a new application for benefits. The majority‘s unsolicited approval of Gamble might be construed as an invitation to DeChirico to refile his claim using Gamble‘s reasoning. If the majority intends to send that message, I strenuously object. We should not give an advisory opinion that may commit our Court to a position on an issue that has not been argued.
David DANAHY, Bette B. Bissram, Mary M. Matthews, Clarence Mungo, Bernadette T. Burke, Nick F. Angiletta and Peter Henesey, Plaintiffs-Appellees, Barry Weiss, Linda Lalli Stark and Joel D. Mahl, Plaintiffs, v. Russell BUSCAGLIA, individually, Salvatore W. Page, individually, and Dennis C. Vacco, individually, Defendants-Appellants.
No. 2065, Docket 97-7264.
United States Court of Appeals, Second Circuit.
Argued Sept. 25, 1997. Decided Jan. 27, 1998.