Knepp v. Comm Social Security , 204 F.3d 78 ( 2000 )


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  •                                                                                                                            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    Precedential or Non-Precedential: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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    Recommended Citation
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2000/34
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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
    833reasonable 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
    17