Thieme v. Commissioner of Social Security
Filing
18
MEMORANDUM DECISION AND ORDER. Based on the foregoing, Petitioner's Petition for Review (Dkt. 1) is DENIED, the decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety, with prejudice. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
JOSEPH FRANK THIEME,
Case No.: 2:17-cv-00198-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER
vs.
NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Respondent.
Pending is Petitioner Joseph Frank Thieme’s Petition for Review1 (Dkt. 1), appealing the
Social Security Administration’s final decision finding him not disabled and denying his claim
for disability insurance benefits and supplemental security income.2 See generally Pet. for
Review (Dkt. 1). This action is brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Having
carefully considered the record and otherwise being fully advised, the Court enters the following
Memorandum Decision and Order:
I. ADMINISTRATIVE PROCEEDINGS
On May 6, 2013, Joseph Frank Thieme (“Petitioner”) protectively applied for Title II
disability and disability insurance benefits and for Title XVI supplemental security income. (AR
13.) Petitioner alleged disability beginning May 3, 2013. (Id.) His claims were denied initially on
August 2, 2013 and then again on reconsideration on September 20, 2013. (Id.) On September
1
The pleading was titled and framed as a complaint, but is more properly treated as a
petition for review, as it seeks review of a final agency action. It will be referred to herein as a
petition for review.
2
Nancy A. Berryhill became the acting Commissioner of the Social Security
Administration on January 23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Nancy A. Berryhill is substituted in as the Respondent in this suit. No further action
need be taken to continue this suit by reason of the last sentence of 42 U.S.C. § 405(g).
MEMORANDUM DECISION AND ORDER – 1
26, 2013, Petitioner timely filed a Request for Hearing before an Administrative Law Judge
(“ALJ”). (Id.) Petitioner appeared and testified at an initial hearing held on July 21, 2015 before
ALJ R.J. Payne in Spokane, Washington. (Id.) Based in part on the testimony of impartial
medical expert Minh D. Vu, M.D., Petitioner was sent for a consultative examination. (Id.)
Petitioner then appeared and testified at a supplemental hearing on October 30, 2015. (Id.)
Impartial orthopedic medical expert Anthony E. Francis, M.D., and impartial vocational expert
Daniel McKinney, Sr., appeared and testified at the supplemental hearing. (Id.)
On December 1, 2015, the ALJ issued a Decision denying Petitioner’s claim, finding that
Petitioner was not disabled within the meaning of the Social Security Act. (AR 24.) Petitioner
timely requested review from the Appeals Council on or about December 17, 2015. (AR 7.) On
April 5, 2017, the Appeals Council denied Petitioner’s Request for Review, making the ALJ’s
decision the final decision of the Commissioner of Social Security. (AR 1.)
Having exhausted his administrative remedies, Petitioner timely filed the instant action,
arguing that “[t]he conclusions and findings of fact of the [respondent] are not supported by
substantial evidence and are contrary to law and regulation.” Pet. for Review 1 (Dkt. 1).
Petitioner challenges the sufficiency of the evidence on which the ALJ relied, arguing that the
ALJ should have concluded that he was disabled. See generally Pet’r’s Br. (Dkt. 15). Petitioner
asks for reversal and a holding that he was disabled for a certain closed period. Id. at 12. He also
asks for remand for the ALJ to decide whether he continues to be disabled from the end of the
closed period onward. Id.
II. STANDARD OF REVIEW
To be upheld, the Commissioner’s decision must be supported by substantial evidence
and based on proper legal standards. 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664 (9th
MEMORANDUM DECISION AND ORDER – 2
Cir. 2017). Findings as to any question of fact, if supported by substantial evidence, are
conclusive. 42 U.S.C. § 405(g). In other words, if there is substantial evidence to support the
ALJ’s factual decisions, they must be upheld, even when there is conflicting evidence. See
Treichler v. Comm’r of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
“Substantial evidence” is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Ludwig v.
Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The standard requires more than a scintilla but less
than a preponderance (Trevizo, 871 F.3d at 674), and “does not mean a large or considerable
amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the role of the Court is to review the record as a whole
to determine whether it contains evidence that would allow a reasonable mind to accept the
conclusions of the ALJ. Richardson, 402 U.S. at 401; see also Ludwig, 681 F.3d at 1051. The
ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and
resolving ambiguities. Treichler, 775 F.3d at 1098. Where the evidence is susceptible to more
than one rational interpretation, the reviewing court must uphold the ALJ’s findings if they are
supported by inferences reasonably drawn from the record. Ludwig, 681 F.3d at 1051. In such
cases, the reviewing court may not substitute its judgment or interpretation of the record for that
of the ALJ. Batson v. Comm’r of Social Sec., 359 F.3d 1190, 1196 (9th Cir. 2004).
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will be reversed for legal error. Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir.
2015); Treichler, 775 F.3d at 1098. Considerable weight must be given to the ALJ’s construction
of the Social Security Act. See Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). However,
reviewing federal courts “will not rubber-stamp an administrative decision that is inconsistent
MEMORANDUM DECISION AND ORDER – 3
with the statutory mandate or that frustrates the congressional purpose underlying the statute.”
Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
III. DISCUSSION
A.
Sequential Process
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a
sequential process in determining whether a person is disabled in general (20 C.F.R. §§
404.1520, 416.920) – or continues to be disabled (20 C.F.R. §§ 404.1594, 416.994) – within the
meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in
substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is
work activity that is both substantial and gainful. 20 C.F.R. §§ 404.1572, 416.972. “Substantial
work activity” is work activity that involves doing significant physical or mental activities. 20
C.F.R. §§ 404.1572(a), 416.972(a). “Gainful work activity” is work that is usually done for pay
or profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the
claimant is engaged in SGA, disability benefits are denied regardless of his medical condition,
age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is
not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ found that
Petitioner has not engaged in substantial gainful activity since May 3, 2013, the alleged onset
date. (AR 15.)
The second step requires the ALJ to determine whether the claimant has a medically
determinable impairment, or combination of impairments, that is severe and meets the duration
requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of
impairments is “severe” within the meaning of the Social Security Act if it significantly limits an
MEMORANDUM DECISION AND ORDER – 4
individual’s physical or mental ability to perform basic work activities. 20 C.F.R.
§§ 404.1520(c), 416.920(c). An impairment or combination of impairments is “not severe” when
medical and other evidence establishes only a slight abnormality or a combination of slight
abnormalities that cause no more than minimal limitation on an individual’s ability to work. SSR
96-3p, 1996 WL 374181 (July 2, 1996); see also 20 C.F.R. §§ 404.1521, 416.921. If the claimant
does not have a severe medically determinable impairment or combination of impairments,
disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that
Petitioner has the following severe impairments: “diabetes mellitus, type II; bilateral below the
knee amputations; and hypertension.” (AR 15.)
The third step requires the ALJ to determine the medical severity of any impairments;
that is, whether the claimant’s impairments meet or equal a listed impairment under 20 C.F.R.
Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
answer is yes, the claimant is considered disabled under the Social Security Act and benefits are
awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor
equal a listed impairment, his claim cannot be resolved at step three and the evaluation proceeds
to step four. 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the ALJ found that Petitioner does not
have an impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments. (AR 16–17.)
The fourth step of the evaluation process requires the ALJ to determine whether the
claimant’s residual functional capacity (“RFC”) is sufficient for the claimant to perform past
relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s RFC is his
ability to do physical and mental work activities on a sustained basis despite limitations from his
impairments. 20 C.F.R. §§ 404.1545, 416.945. An individual’s past relevant work is work he
MEMORANDUM DECISION AND ORDER – 5
performed within the last 15 years or 15 years prior to the date that disability must be
established, as long as the work was substantial gainful activity and lasted long enough for the
claimant to learn to do the job. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here,
the ALJ determined that Petitioner has the RFC:
to perform a range of sedentary work as defined in 20 CFR 40.1567(a) and
416.967(a). The claimant can lift 20 pounds occasionally and lift or carry 10 pounds
frequently; can sit 6 hours and stand and walk 2 hours total, in any combination, in
an 8 hour workday with normal breaks; can occasionally climb ramps and stairs,
balance, stoop, and crouch, but cannot crawl, kneel, or climb ladders, ropes, and
scaffolds; cannot be exposed to unprotected heights, and should avoid concentrated
exposure to extreme cold, heavy industrial vibrations, and hazardous machinery
with moving parts.
(AR 17.) The ALJ further found that Petitioner is unable to perform any of his past relevant
work. (AR 22.)
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of his impairments, the burden shifts to the Commissioner to show
that the claimant retains the ability to do alternate work and to demonstrate that such alternate
work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Garrison v. Colvin, 759 F.3d 995, 1011 (9th
Cir. 2014). If the claimant is able to do such other work, he is not disabled; if the claimant is not
able to do other work and meets the duration requirement, he is disabled. Here, the ALJ found
that Petitioner’s RFC is compatible with work as a “production assembler,” “electronics worker,”
“order clerk, food and beverage,” “table worker,” or “call-out operator.” (AR 24.) The ALJ
further found that these jobs exists in significant numbers in the national economy. (Id.)
Based on the finding that Petitioner could perform jobs that exist in significant numbers
in the national economy, the ALJ ultimately concluded that Petitioner “has not been under a
MEMORANDUM DECISION AND ORDER – 6
disability, as defined in the Social Security Act, from May 3, 2013, through the date of this
decision.” (Id.)
B.
Analysis
Petitioner contends that he met the requirements of Listing 1.05B of the official listings,
so it was error for the ALJ to find he was not disabled. Implicit in this argument is an assertion
the ALJ did not rely on substantial evidence in finding him not disabled. Notwithstanding the
difficult circumstances in which Petitioner finds himself, on review the Court finds the ALJ did
rely on substantial evidence and therefore under applicable law, the Petitioner’s petition must be
denied.
SSA regulations provide that “[t]he Listing of Impairments . . . describes for each of the
major body systems impairments that we consider to be severe enough to prevent an individual
from doing any gainful activity, regardless of his or her age, education, or work experience.” 20
C.F.R. § 404.1525(a). Listing 1.05 addresses amputations. 20 C.F.R. Part 404, Subpart P, app. 1,
1.05. To satisfy the requirements of Listing 1.05B, Petitioner must show amputation 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, which
have lasted or are expected to last for at least 12 months.” As indicated, the regulations provide a
definition of “to ambulate effectively”:
b. What We Mean by Inability To Ambulate Effectively
(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 handheld assistive device(s) that limits the functioning of both upper extremities.
(Listing 1.05C is an exception to this general definition because the individual has
the use of only one upper extremity due to amputation of a hand.)
MEMORANDUM DECISION AND ORDER – 7
(2) To ambulate effectively, individuals must be capable of sustaining a reasonable
walking pace over a 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.
Listing 1.00B2b.
Petitioner has undergone bilateral below-the-knee amputations on May 6, 2013. (AR 18;
Pet’r’s Br. 7 (Dkt. 15).) Petitioner refers to “weird, confusing medical records” (Pet’r’s Br. 3)
that later indicated Petitioner still had both of his legs, but the ALJ’s decision states the correct
date of the amputations and does not appear to rely on the records Petitioner calls out as
inconsistent. Regardless, because of the amputations, Listing 1.05B is clearly implicated. The
only issue in this case is whether Petitioner met the requirements for that listing.
The ALJ found that Petitioner
was able to ambulate independently and effectively using prosthetics within one
year after his amputations. His amputations occurred in May 2013 and he was
independent on prosthetics by August 2013. While the claimant now reports his
prosthetics no longer fit, this occurred well over a year after he was fitted for the
prosthetics and there has been no evidence of stump complications.
(AR 17.) Listing 1.05B requires “stump complications resulting in medical inability to use a
prosthetic device to ambulate effectively.” Given that the ALJ found (1) no evidence of stump
complications and (2) that Petitioner was able to ambulate effectively, the ALJ’s decision must
be upheld if substantial evidence supports such findings. Treichler, 775 F.3d at 1098.
The Court is convinced that these ALJ findings are supported by substantial evidence.
The ALJ clearly was aware of the circumstances facing Petitioner as a result of the difficulty
MEMORANDUM DECISION AND ORDER – 8
caused by the fit of his prosthetics. The ALJ carefully surveyed the factual record and the
applicable law. The ALJ’s decision is lengthy, detailed, and thorough. It contains an extensive
discussion of Petitioner’s medical history, including a review of records shortly after his
amputations. (AR 18–22.) Of particular note are the following portions of the ALJ’s decision:
The claimant was hospitalized on May 5, 2013, with a diagnosis of severe
diabetic foot ulcers with secondary gas gangrene and osteomyelitis. Mark
Hernandez, M.D., reported at that time the claimant had type II diabetes mellitus
with a history of refusing to take his medications or attempt to control his diabetes.
(Exhibit lF) He underwent bilateral below the knee amputations on May 6, 2013.
(Exhibit 2F)
By May 29, 2013, Edward DeTar, M.D., indicated the claimant’s stumps
were clean, dry, intact, and completely healed. The claimant had no pain and his
blood sugars were much easier to control now that his infections were gone. He was
ready to start his prosthetic training. (Exhibit 3F)
Richard Allen, CP, reported on July 12, 2013, the claimant was tired of
using a wheelchair and was anxious to learn how to walk with prostheses. The
claimant’s limbs “looked great” and he was casted over liner molds for bilateral
prosthetics. (Exhibit 4F)
On August 13, 2013, Brett O’Connor, FNP, reported the claimant’s stumps
were well healed and the claimant could get up and down from a seated position
although he needed a countertop or something to hang onto for stability. He further
indicated the claimant had a very good prognosis to be independent in walking
when he had his permanent prostheses and had physical and occupational therapy.
(Exhibits 5F/1; 6F/2) The claimant was otherwise doing well with his diabetes and
hypertension now stable. (Exhibit 5F/3) He was observed to walk 30 steps with
minimal assistance from the bars and he reported standing at home. (Exhibit l lF/5)
Melissa Rouse, LPN, reported shortly thereafter the claimant was mostly
independent in all his activities of daily living and was able to transfer without
prosthetics, and he was independent with bed mobility. (Exhibit 8F/10) He
underwent physical therapy from August 15 to August 31, 2013, and Helena Albert,
PT, reported on discharge the claimant had reached a safe level of gait with bilateral
forearm. He was able to safely complete cooking and washing laundry with stand
by assistance and complete toileting tasks utilizing adaptive equipment at a
modified independent level. He was discharged to home to work on home exercises.
(Exhibit 6F/32, 38)
In September 2013, Mr. Allen reported the claimant had learned to walk up
and down ramps as well as uneven surfaces like the bumpy grass. He was using his
forearm crutches and he had used his wheelchair very little. He even indicated the
claimant had surpassed the ambulatory guidelines in a very short amount of time.
(Exhibit l lF/7-8) The claimant was also noted to report improvement with each
adjustment made and on September 18, 2013, he reported walking one-quarter of a
mile a day. He reported being pleased with his prosthetics and was feeling great in
MEMORANDUM DECISION AND ORDER – 9
January 2014. He even reported shoveling his driveway and maintaining his house.
On July 28, 2014, Mr. Allen again noted the claimant had surpassed their
expectations for ambulating in prosthetics. (Exhibit l lF/8-10)
(AR 18–19.) A review of the cited records indicates the ALJ faithfully represented their contents
and significance.3
Petitioner’s own testimony supports the ALJ’s finding. At both the initial hearing and the
supplemental hearing, Petitioner walked into the hearing room on his prosthetics. (AR 37, 82–
83.) He said that, using his prosthetics, by “June [2014] I could walk with only one crutch.” (AR
51.) He also denied having problems with ulcers or his stumps4 in the first year after his
amputations. (AR 52.)
Petitioner does not challenge any of the evidence the ALJ relied on. Rather, Petitioner
offers his own interpretation of the evidence to conclude he met the requirements of Listing
1.05B. He cites record evidence that in 2015, two years after getting his prostheses, he had
“multiple sores on his residual limbs that will get worse if not taken care of.” (AR 479.) But the
same provider opined that the sores were the result of using ill-fitting prostheses and that
Petitioner “has the ability to do what ever physical activities he chooses, as long as he has
appropriate fitting prostheses.” (Id.) Petitioner also cites the report of consultative examiner Dr.
Rex E. Head, M.D., who opined in August 2015 that Petitioner’s musculoskeletal examination
was abnormal and that he had “red irritated healing ulcers on each stump.” (AR 486.) Again,
however, the provider opined that Petitioner’s “[p]rosthetic and sleeves do not fit. They are
3
The only exceptions are minor: the ALJ cited Exhibit 8F/10 for the report of Melissa
Rouse, LPN, but such report appears instead in Exhibit 6F/10. (AR 410.) Additionally, the ALJ
cited that Petitioner reported walking one-quarter of a mile a day, but the report was actually that
he walked one-quarter of a mile every other day. (AR 477.)
4
The transcript says “stones,” but in context “stones” makes no sense. The Court
concludes the transcript should read “stumps” rather than “stones.”
MEMORANDUM DECISION AND ORDER – 10
loose.” (Id.) Finally, Petitioner cites a letter from his primary treating physician, Dr. Mark
Hernandez, M.D., stating that “[t]he skin irritation experienced by [Petitioner] as a result of an ill
fitting devices is common…. The inability to ambulate effectively as defined by the Social
Security Administration appropriately describes [Petitioner’s] condition.” (AR 498.) But Dr.
Hernandez also opined that “[w]ith new, proper fitting of bilateral prostheses and rehabilitate
ambulation, physical therapy would enable him to become mobility independent and he would
very likely be able to rejoin the workforce.” (Id.) Petitioner himself testified at the October 2015
hearing that his prosthetics worked “good until the prosthetics started to not fit this last January.”
(AR 54.)
Thus, a common theme in Petitioner’s argument is that his limitation in ambulating
effectively is due to ill-fitting prostheses. The record reflects that Petitioner lost medical
insurance coverage in August 2013, while he was still in physical therapy, and that he has not
had insurance since. (AR 84.) He has been using the same prostheses since July 2013, even
though the swelling in his stumps has long since faded and his muscles have atrophied. There is
no dispute that Petitioner needs new prosthetic legs.
Unfortunately, such a need alone does not support a finding of disability. Respondent
points out that the Commissioner issued a statement clarifying Listing 1.05B when it was being
finalized:
the final rules clarify that the inability to use a prosthetic device to ambulate
effectively refers to a “medical” inability to use a prosthetic device as a result of
stump complications. The inability to afford a prosthetic device does not represent
a “medical” inability to use a prosthetic device to ambulate effectively.
66 F.R. 58047-01 (Nov. 19, 2001), available at 2001 WL 1453890. In each of the medical
records Petitioner cites, the provider opines that Petitioner’s limitations are due to ill-fitting
prosthetics – which he cannot afford to replace – rather than due to “stump complications,” as
MEMORANDUM DECISION AND ORDER – 11
required by Listing 1.05B. Nothing in the record suggests Petitioner suffers from a medical
inability to use a prosthetic device. There is extensive evidence that he is capable, physically and
medically, of using a prosthetic device.
Thus, the ALJ cited, and relied on, substantial evidence in finding that Petitioner does not
meet the requirements of Listing 1.05B. Petitioner has not shown otherwise, and his petition
must therefore be denied.
IV. CONCLUSION
Petitioner has not shown that the ALJ’s decision is unsupported by substantial evidence
or otherwise contains reversible legal error. The ALJ’s decision was supported by substantial
evidence and Petitioner’s arguments do not call into question the sufficiency of that evidence.
Accordingly, the ALJ’s decision is affirmed.
V. ORDER
Based on the foregoing, Petitioner’s Petition for Review (Dkt. 1) is DENIED, the
decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety,
with prejudice.
DATED: August 27, 2018
________________________
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER – 12
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