Gabriel v. SSA 08-CV-171-SM 06/23/09 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Eugene M. Gabriel, Claimant

v. Civil No. 08-cv-l71-SM Opinion No.

Michael J. Astrue, Commissioner, Social Security Administration, Respondent

O R D E R

Respondent moves to amend or alter the order remanding this

case to the ALU (document no. 22). Claimant objects. The motion

is denied.

First, respondent appears confused about the import of the

relevant regulations. While section 1.00B2b of 20 C.F.R. section

404, Subpart P, Appendix 1, defines the phrase "inability to

ambulate effectively" and describes effective ambulation, that

section does not purport to define the pertinent phrase "on a

sustained basis," as it is used in section 1.00B2a, which

provides that "functional loss for purposes of these listings is

defined as the inability to ambulate effectively on a sustained

basis" (emphasis added). Moreover, even if the regulations did

operate as respondent would have it, his position is not

enhanced. Section 1.00B2b(l) provides that "[t]o 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" (emphasis added). If that regulation

did define the phrase "on a sustained basis," then sustained

performance of "activities of daily living" would, necessarily,

require performance of those activities on a daily basis,

routinely, consistently, day in and day out. The ability to

ambulate sufficiently to carry out activities of daily living

only sporadically, or occasionally, not routinely, or not without

interspersed periods of recovery or recuperation, would not

constitute effective ambulation.

Here, Gabriel introduced evidence that to save wear and tear

on his stump, and preclude debilitating sores from developing, he

performed many activities of daily living at home by scuttling

about on his buttocks, and not by ambulating effectively. That

is, record evidence suggests that because of his stump

complications, Gabriel was not able to use his prosthesis to

perform walking activities associated with daily living, because

he could not do so, daily, without jeopardizing his ability to

use it to perform other necessary walking activities, like going

to work and working.

2 Respondent's additional argument, that the ALJ's failure to

explain his step-three finding was harmless error, is also

unpersuasive. There is "ample evidence in the record to support

a determination that the claimant's impairment meets or equals

one of the listed impairments." Ketcher v. Apfel, 6

(D. M d . 1999). Accordingly, the ALJ had a duty to

"identify the relevant listed impairments and compare each of the

listed criteria to the evidence of [the claimant's] symptoms."

The ALJ did not perform that duty.

Respondent's motion to amend or alter judgment (document no.

24) is denied.

SO ORDERED.

/seven J.'McAuliffe hief Judge

June 23, 2009

cc: Maureen R. Manning, Esq. T. David Plourde, Esq.

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