Frock v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER. The judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 9/11/2013. (bmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JESSICA FROCK, o/b/o
L.F., a minor,
Case No. 12-1254-SAC
CAROLYN W. COLVIN,
Acting Commissioner of
MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying Jessica Frock
supplemental security income payments for her child L.F.
(hereinafter referred to as “plaintiff”).
The matter has been
fully briefed by the parties.
General legal standards
The court's standard of review is set forth in 42 U.S.C.
§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
The court should review the Commissioner's
decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
Glenn v. Shalala, 21 F.3d 983, 984
Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013, replacing Michael J.
Astrue, the former Commissioner of Social Security.
(10th Cir. 1994).
Substantial evidence requires more than a
scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
The determination of whether substantial evidence
supports the Commissioner's decision is not simply a
quantitative exercise, for evidence is not substantial if it is
overwhelmed by other evidence or if it really constitutes mere
Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.
the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.
The court should examine the record as a whole,
including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.
F.3d at 984.
Legal standards for child disability
The ALJ is required to apply a three-step analysis when
making a determination of whether a child is disabled.
to find that a child is disabled, the ALJ must determine, in
this order, (1) that the child is not engaged in substantial
gainful activity, (2) that the child has an impairment or
combination of impairments that is severe, and (3) that the
child’s impairment meets, medically equals, or functionally
equals a listed impairment.
Briggs v. Massanari, 248 F.3d 1235,
1237 (10th Cir. 2001); 20 C.F.R. § 416.924(a) (2012 at 858).
If a child has a severe impairment which does not meet or
medically equal any listing, the ALJ must decide whether the
severe impairment results in limitations that functionally equal
By “functionally equal the listings,” the agency
means that the severe impairment must be of listing level
severity, i.e., it must result in marked limitations in two
domains of functioning or an extreme limitation in one domain.
20 C.F.R. § 416.926a(a).
The six domains to be considered are:
(1) acquiring and using information, (2) attending and
completing tasks, (3) interacting and relating with others, (4)
moving about and manipulating objects, (5) caring for yourself,
and (6) health and physical well-being.
20 C.F.R. §
History of case
On August 12, 2011, administrative law judge (ALJ) John B.
Langland issued his decision (R. at 12-25).
on November 22, 2009 (R. at 15).
Plaintiff was born
Jessica Frock filed her
application on behalf of her son on March 25, 2010 (R. at 12).
At step one, the ALJ determined that plaintiff has not engaged
in substantial gainful activity since the application date (R.
At step two, the ALJ found that plaintiff has the
following severe impairments: left fibular hemilemia status post
syme amputation and osteotomy of left ankle (R. at 15).
three, the ALJ determined that plaintiff’s impairments do not
medically meet, equal or functionally equal a listed impairment
(R. at 15-24).
Therefore, the ALJ concluded that plaintiff has
not been disabled since March 25, 2010, the application date (R.
Did the ALJ err in finding that plaintiff’s impairment did
not meet or equal listed impairment 101.05B?
Plaintiff was born on November 22, 2009 (R. at 15).
Plaintiff was born with a deformed left leg.
underwent a below-the-knee amputation of his left leg on
September 21, 2010.
Plaintiff received his first prosthesis on
November 7, 2010 (Doc. 14 at 4-5, 10; Doc. 23 at 2).
was 1 year and between 8 and 9 months old at the time of the ALJ
decision on August 12, 2011.
Listed impairment 101.05B is as follows:
Amputation (due to any cause)…
B. One of 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 101.00B2b, which have lasted
or are expected to last for at least 12
20 C.F.R. Pt. 404, Subpt. P, App. 1 (2013 at 537). § 101.00B2b
is as follows:
b. What We Mean by Inability To Ambulate
(1) Definition. Inability to ambulate
effectively means an extreme limitation of
the ability to walk; i.e., an impairment
that interferes very seriously with the
child’s ability to independently initiate,
sustain, or complete activities.
Ineffective ambulation is defined generally
as having insufficient lower extremity
functioning to permit independent ambulation
without the use of a hand-held assistive
device(s) that limits the functioning of
both upper extremities…
20 C.F.R. Pt. 404, Subpt. P, App. 1 (2013 at 533).2
Plaintiff has the burden to present evidence establishing
that his impairments meet or equal a listed impairment.
Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005).
In order for the plaintiff to show that his impairments match a
listing, plaintiff must meet “all” of the criteria of the listed
An impairment that manifests only some of those
criteria, no matter how severely, does not qualify.
Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 891 (1990)(emphasis
The ALJ found that plaintiff’s impairment did not meet or
medically equal listed impairment 101.05B, stating that although
The ALJ, in his decision, stated that the ability to ambulate effectively was set out in 1.00B2B (R. at 15), which is
the section for adults, and not children. The court finds, on the facts of this case, that plaintiff has failed to establish
that this error resulted in an adverse decision by the ALJ.
the record reveals that the plaintiff frequently discarded his
prosthesis during the day, the records indicated that plaintiff
is able to move about when the prosthesis is in use (R. at 15).
At step three, plaintiff has the burden of demonstrating,
through medical evidence, that his/her impairments meet all of
the specified medical criteria contained in a particular
Riddle v. Halter, 10 Fed. Appx. 665, 667 (10th Cir.
March 22, 2001).
Defendant argues that there is no evidence of stump
The listed impairment requires a showing of
“stump complications” resulting in medical inability to use a
prosthetic device to ambulate effectively.
In the case of
Puckett v. Chater, 100 F.3d 730, 733 (10th Cir. 1996), the court
stated that listing 1.10 “plainly requires stump complications,
not problems with prosthetic fit.”
Problems with repairing or
replacing a prosthesis do not fall within the scope of the
The court went on to state the following:
…plaintiff must prove that he is unable to
use a prosthesis effectively because of
stump complications lasting for at least
At no time relevant to the disability
determination was there any indication that
plaintiff needed revisions to his stump…
Dr. Allen’s indication that plaintiff always
will have stump problems, even with the best
management, is not enough to establish an
impairment meeting the listing. According
to Dr. Allen, any stump problems are
primarily due to an improper fit of the
No medical records reflect a stump problem
independent of the prosthesis fit or
plaintiff’s overuse of the prosthesis. See
…id. at 234-35 (stump redness and irritation
caused by poor fit and amount of work
plaintiff was demanding of prosthesis).
100 F.3d at 733.
The only evidence cited by the plaintiff regarding the
stump was a record from May 11, 2011 noting rub sores, and that
red areas were noted after the prosthesis was on for about 15
minutes along the top ridge of the prosthesis (R. at 442).
However, plaintiff does not cite to any evidence of stump
As in Puckett, in the case before the court,
plaintiff does not cite to any evidence that plaintiff needed
revisions to his stump; furthermore, plaintiff does not cite to
any medical evidence reflecting a stump problem independent of
the prosthesis fit.
Plaintiff has failed to cite to medical
evidence that plaintiff has stump complications, as required by
listed impairment 101.05B.
Plaintiff has therefore failed to
provide medical evidence that his impairment meets all of the
specified criteria of this listed impairment.
also failed to cite to any medical opinion evidence that
plaintiff’s impairment meets or equals this listed impairment.
Therefore, there is no basis to remand this case for further
consideration of whether plaintiff’s impairment meets or equals
listed impairment 101.05B.
Cowen v. Astrue, Case No. 09-1205-
SAC (D. Kan. July 21, 2010; Doc. 19 at 8-9); (no basis for
remand regarding listed impairment 1.04A when plaintiff failed
to point to any specific medical evidence regarding the
requirement of nerve root compression); Levins v. Astrue, 2010
WL 1881452 at *6 (E.D. Wis. May 10, 2010)(same).
Listed impairment 101.05B further states that a claimant
have stump complications resulting in an inability to use a
prosthetic device to ambulate effectively, which is expected to
last for 12 months.
According to PT (physical therapist)
Theresa Merck, in a form dated May 10, 2011, plaintiff is not
walking independently with the prosthesis, but walks with
support, and is just starting to stand briefly without support.
As a result PT Merck opined that plaintiff has a “marked”
impairment in his ability to move about and manipulate objects
(R. at 328).
However, the most recent therapy record, dated
June 1, 2011 from PT Merck, indicates that plaintiff is able to
take 5 steps without support, and has good mobility,
transitions, and climbs (R. at 445).
approximately 1 year and 6 months old on June 1, 2011.
According to C.F.R. § 416.926a(j)(2)(ii), infants and
toddlers from age 1 to age 3 should begin to walk and run
without assistance, and climb with increasing skill.
was first fitted with a prosthesis on November 7, 2010, and the
ALJ decision was issued on August 12, 2011, while plaintiff was
1 year and between 8 and 9 months of age.
According to the most
recent therapy record on June 1, 2011, plaintiff is able to take
5 steps without support, has good mobility, transitions and
The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.
Hackett v. Barnhart, 395
F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).
Although the court will
not reweigh the evidence, the conclusions reached by the ALJ
must be reasonable and consistent with the evidence.
v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must
affirm if, considering the evidence as a whole, there is
sufficient evidence which a reasonable mind might accept as
adequate to support a conclusion).
Based on the most recent
therapy record, and plaintiff’s age at that time, the court
finds that substantial evidence supports the ALJ’s conclusion
that plaintiff is able to move about when the prosthesis is in
use, and can ambulate effectively.
Furthermore, the court would
note that plaintiff presented no medical opinion evidence that
plaintiff’s alleged inability to ambulate effectively has lasted
or is expected to last for 12 months.
Plaintiff also argues that the court consider whether his
condition at least equals the listed impairment.
is raised for the first time in plaintiff’s reply brief (Doc. 24
First, arguments raised for the first time in a reply
brief are waived and will not be considered by the court.
Water-Pik, Inc. v. Med-Systems, Inc., __ F.3d ___, 2013 WL
4046470 at *21 n.8 (10th Cir. Aug. 12, 2013); Lynch v. Barrett,
703 F.3d 1153, 1160 n.2 (10th Cir. 2013).
Second, even if the
court were to consider this argument, the determination of
medical equivalence is to be based solely on medical findings.
Puckett, 100 F.3d at 733.
As in Puckett, the court finds that
the medical evidence does not show that plaintiff’s impairments
equal listed impairment 101.05B.
In summary, the court finds
that substantial evidence supports the ALJ’s finding that
plaintiff’s impairment does not meet or medically equal listed
Did plaintiff have an “extreme” limitation in the domain of
moving about and manipulating objects?
The ALJ found that plaintiff only had “marked” limitation
in this domain (R. at 22).
Plaintiff argues that the evidence
supports a finding that plaintiff has an “extreme” limitation in
As noted above, a person with an extreme
limitation in one domain functionally equals a listed
A child will be considered to have an extreme
impairment in a domain when the child’s impairment(s) interferes
very seriously with his/her ability to independently initiate,
sustain, or complete activities.
The child’s day-to-day
functioning may be very seriously limited when his/her
impairment(s) limits only one activity or when the interactive
and cumulative effects of his/her impairment(s) limit several
Extreme limitation also means a limitation that is
more than marked.
Extreme limitation is the rating given to the
However, extreme limitation does not
necessarily mean a total lack or loss of ability to function.
20 C.F.R. § 416.926a(e)(3) (2013 at 882).
Dr. Timmerman opined that plaintiff had a “marked”
impairment in the domain of moving about and manipulating
objects (R. at 201).
Dr. Siemsen opined that plaintiff had a
“less than marked” limitation in this domain (R. at 258).
Merck opined that plaintiff had a “marked” impairment in this
domain (R. at 328).
Finally, Dr. Harrington, a treatment
provider, opined that plaintiff had a “less than marked”
limitation in this domain (R. at 435).
There is no medical
opinion in the record indicating that plaintiff has an extreme
limitation in this domain.
Substantial evidence clearly
supports the ALJ’s finding that plaintiff has a “marked”
limitation in this domain.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
Dated this 11th day of September, 2013, Topeka, Kansas.
s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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