Avenetti v. Social Security Administration

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM D. AVENETTI, 
Plaintiff-Appellant,
No. 04-15813
v.
JOANNE B. BARNHART,  D.C. No.
CV-02-01436-MS
Commissioner of the Social
OPINION
Security Administration,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
Morton Sitver, Magistrate Judge, Presiding
Argued and Submitted
February 17, 2006—San Francisco, California
Filed August 8, 2006
Before: J. Clifford Wallace, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Wallace
9101
AVENETTI v. BARNHART 9103
COUNSEL
Mark Caldwell, Caldwell & Ober, P.L.L.C., Phoenix, Ari-
zona, for plaintiff-appellant William D. Avenetti.
Donna M. Montano, Assistant Regional Counsel, San Fran-
cisco, California, for the defendant-appellee.
OPINION
WALLACE, Senior Circuit Judge:
Avenetti appeals from the summary judgment entered in
favor of the Commissioner of the Social Security Administra-
tion (Commissioner). He challenges the district court’s inter-
pretation of the then-applicable Medical Listing 1.13, 20
C.F.R. Part 404, Subpt. P, App. 1 § 1.13 (1999) (Listing
1.13). We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.1
I.
Avenetti served in the United States Navy and later worked
as a laborer until August 21, 1995, when he was involved in
1
Avenetti’s other arguments are addressed by the accompanying memo-
randum disposition.
9104 AVENETTI v. BARNHART
a serious automobile accident. Among other injuries, Avenetti
suffered third-degree burns over approximately 37% of his
body.
Avenetti was hospitalized for two months during which he
underwent several surgical operations, including multiple skin
grafts. He was then transferred to a rehabilitation unit for one
month.
After discharge, Avenetti was under the care of a specialist
in physical medicine and rehabilitation. Avenetti required two
additional inpatient reconstructive procedures and later under-
went two additional procedures on an outpatient basis.
On August 8, 1996, the Social Security Administration
(SSA) concluded that Avenetti was disabled and made its
finding retroactive to the date of the accident. The SSA con-
cluded that his condition met Listing 1.13.
On October 14, 1997, the SSA reviewed Avenetti’s status
pursuant to 20 C.F.R. § 404.1594, and concluded that he had
recovered sufficiently such that he was no longer disabled.
The SSA notified Avenetti of its conclusion on November 1,
1998, and stated that his benefits would expire on January 1,
1999.
Avenetti filed a request for reconsideration and, after a
hearing, a disability hearing officer found that Avenetti was
not disabled. At Avenetti’s request, an additional hearing was
conducted before an Administrative Law Judge (ALJ) on
August 4, 1999, resulting in a determination that Avenetti was
not disabled as of January 1, 1999.
After an unsuccessful appeal to the Appeals Council, Ave-
netti filed an action in the district court. The district court
entered summary judgment in favor of the Commissioner, and
Avenetti filed a timely appeal.
AVENETTI v. BARNHART 9105
II.
[1] The central issue in this appeal is the proper interpreta-
tion of the then-applicable Listing 1.13, which read:
Soft tissue injuries of an upper or lower extremity
requiring a series of staged surgical procedures
within 12 months after onset for salvage and/or res-
toration 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. Pt. 404, Subpt. P, App. 1, § 1.13.
The district court adopted the interpretation of three cir-
cuits, see Knepp v. Apfel, 204 F.3d 78, 86 (3d Cir. 2000);
Lapinsky v. Secretary of Health & Human Services, 857 F.2d
1071, 1073 (6th Cir. 1988); Waite v. Bowen, 819 F.2d 1356,
1359 (7th Cir. 1987), and held that this provision requires dis-
ability that is caused by the restorative surgical procedures.
Avenetti challenges this interpretation and urges us to adopt
an analysis similar to that of the Eighth Circuit, which has no
such requirement. See Senne v. Apfel, 198 F.3d 1065, 1067-68
(8th Cir. 1999).
We review a district court’s judgment upholding the Com-
missioner’s denial of benefits de novo. See Moisa v. Barnhart,
367 F.3d 882, 885 (9th Cir. 2004). Our review of the ALJ’s
interpretation is a more complicated issue. We have previ-
ously accorded deference to SSA interpretations, titled Social
Security Rulings (SSRs). See, e.g., Holohan v. Massanari,
246 F.3d 1195, 1203 (9th Cir. 2001); Bunnell v. Sullivan, 947
F.2d 341, 346 n.3 (9th Cir. 1991) (en banc). SSRs reflect the
official interpretation of the SSA and are entitled to “ ‘some
deference’ as long as they are consistent with the Social
Security Act and regulations.” Ukolov v. Barnhart, 420 F.3d
1002, 1005 n.2 (9th Cir. 2005) (citation omitted).
9106 AVENETTI v. BARNHART
We have not specifically addressed whether deference
applies to an ALJ’s interpretation of a disability listing. The
Commissioner, however, has not argued that any deference
applies to the ALJ’s interpretation. Therefore, this potential
argument is waived. See Smith v. Marsh, 194 F.3d 1045, 1052
(9th Cir. 1999) (“on appeal, arguments not raised by a party
in its opening brief are deemed waived”). We therefore
review the interpretation of Listing 1.13 de novo, as it is a
question of law.
III.
[2] The Third, Sixth and Seventh Circuits have adopted the
same interpretation of Listing 1.13, and each did so without
according any deference to the SSA’s or ALJ’s legal interpre-
tation. See Knepp, 204 F.3d at 86-87; Lapinsky, 857 F.2d at
1073; Waite, 819 F.2d at 1359. The Seventh Circuit was first
to interpret the provision and held that the listing is “directed
at the loss of the use of one extremity, not in itself disabling
. . . , where restoration of function will require repeated staged
surgical procedures . . . , thus making an individual who
would otherwise be capable of substantial gainful employ-
ment unavailable for work because of these repeated surgical
procedures.” Waite, 819 F.2d at 1359 (emphasis added). The
court reasoned that “the purpose of listing 1.13 is to allow a
period of recovery for surgical restoration of an impaired
limb, the functional loss of which is implicitly regarded as not
disabling.” Id. at 1360.
[3] The Sixth Circuit adopted the same analysis shortly
thereafter. It held that “[u]nder listing 1.13, a claimant is
deemed disabled as a result of his having been rendered
unavailable for employment due to the surgical procedures
. . . .” Lapinsky, 857 F.2d at 1073. It further held that “[w]hen
the claimant is no longer unavailable for employment due to
the surgical procedures, he is no longer disabled within the
contemplation of listing 1.13.” Id.
AVENETTI v. BARNHART 9107
[4] More recently, the Third Circuit has adopted the same
interpretation in Knepp. 204 F.3d at 86-87. It held that the list-
ing “addresses only those situations in which the surgical pro-
cedures themselves contribute to the claimant’s inability to
work . . . .” Id. at 87.
The Eighth Circuit, by contrast, rejected a requirement that
surgery render the patient unavailable for work, and instead
only required that the surgeries were “staged” and they “were
undertaken solely for the purpose of relieving his pain, or for
the purpose of restoring strength and function . . . .” Senne,
198 F.3d at 1068.
Avenetti’s proposed interpretation, relying on Senne, raises
two highly problematic issues. First, as the Seventh Circuit
reasoned, “[i]f the regulations . . . were intended to grant ben-
efits to one who has lost the use of an extremity for twelve
months or more, then the wording of the listing would have
been that simple.” Waite, 819 F.2d at 1359. Moroever, that
interpretation would render Listing 1.13 duplicative of Listing
1.09, which addresses loss of function of extremities. See id.
Second, under Avenetti’s interpretation, once a person
qualifies for Listing 1.13, he or she will be entitled to lifetime
disability benefits, no matter how much improvement occurs.
As such, the disability finding would be permanent because
no causal relationship between surgery and disability would
be required, nor would there be any requirement that the
claimant be actually impaired in the slightest after the original
twelve-month period. It is highly implausible that the SSA
meant to create a perpetual entitlement to disability benefits
regardless of actual impairment. Avenetti has not provided
any limiting principle that would prevent Listing 1.13 from
automatically providing lifetime benefits under his interpreta-
tion.
[5] We are persuaded by the reasoning of the Third, Sixth,
and Seventh Circuits, and hold that Listing 1.13 requires that
9108 AVENETTI v. BARNHART
a person be rendered unable to work because of staged surgi-
cal procedures. Listing 1.13 is directed towards individuals
who, while otherwise not qualifying as disabled, are unable to
work because of their need for staged restorative surgeries.
“When the claimant is no longer unavailable for employment
due to the surgical procedures, he is no longer disabled within
the contemplation of listing 1.13.” Lapinsky, 857 F.2d at
1073.
[6] In light of our interpretation of Listing 1.13, there is
substantial evidence to support the ALJ’s finding that Ave-
netti was not disabled as of January 1, 1999. Although Ave-
netti had two surgical procedures on an outpatient basis after
that date, there is no evidence, or indeed even argument, that
they were disabling. We therefore affirm summary judgment
in favor of the Commissioner.
AFFIRMED.