James Ezzell v. Nancy Berryhill , 688 F. App'x 199 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1430
JAMES R. EZZELL,
Plaintiff - Appellant,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:14-cv-00251-D)
Submitted: January 31, 2017 Decided: May 4, 2017
Before GREGORY, Chief Judge, DIAZ, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Charlotte W. Hall, CHARLES T. HALL LAW FIRM, Raleigh, North
Carolina, for Appellant. John Stuart Bruce, Acting United
States Attorney, G. Norman Acker, III, Assistant United States
Attorney, Todd J. Lewellen, Special Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
______________
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Ezzell appeals the district court’s order accepting
the recommendation of the magistrate judge and upholding the
Commissioner’s denial of disability insurance benefits and
supplemental security income. On appeal, Ezzell contends that
the ALJ erred at Step Three of the sequential analysis by
failing to consider the applicability of Listing 1.03 and that,
in light of the ALJ’s failure to resolve discrepancies between
her findings and the medical evidence regarding Ezzell’s ability
to ambulate effectively, the district court erred in ruling that
any such error was harmless. We agree and, accordingly, vacate
and remand.
We “will affirm the Social Security Administration’s
disability determination when an ALJ has applied correct legal
standards and the ALJ’s factual findings are supported by
substantial evidence.” Mascio v. Colvin, 780 F.3d 632, 634 (4th
Cir. 2015) (internal quotation marks omitted). “Substantial
evidence is that which a reasonable mind might accept as
adequate to support a conclusion. It consists of more than a
mere scintilla of evidence but may be less than a
preponderance.” Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir.
2015) (citation and internal quotation marks omitted).
An ALJ is not required to explicitly identify and discuss
every possible listing; rather, he is compelled to provide a
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coherent basis for his Step Three determination, particularly
where the “medical record includes a fair amount of evidence”
that a claimant’s impairment meets a disability listing.
Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). When
there is “ample evidence in the record to support a
determination” that the claimant’s impairment meets or equals
one of the listed impairments, the ALJ must identify “the
relevant listed impairments” and compare “each of the listed
criteria to the evidence of [the claimant’s] symptoms.” Cook v.
Heckler, 783 F.2d 1168, 1172-73 (4th Cir. 1986); see also
Radford, 734 F.3d at 295 (noting that “full explanation by the
ALJ is particularly important” when “there is probative evidence
strongly suggesting that [the claimant] meets or equals” a
Listing).
Listing 1.03 pertains to “reconstructive surgery or
surgical arthrodesis of a major weight-bearing joint, with
inability to ambulate effectively . . . and return to effective
ambulation did not occur, or is not expected to occur, within 12
months of onset.” 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.03.
The 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
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insufficient lower extremity functioning . . . to permit
independent ambulation without the use of a handheld assistive
device(s) that limits the functioning of both upper extremities.
20 C.F.R., Pt. 404, Subpt. P, Appx. 1, § 1.00(B)(2)(b)(1).
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.” 20 C.F.R., Pt. 404, Subpt. P, Appx.
1, § 1.00(B)(2)(b)(2). The ability to walk independently about
one’s home without the use of assistive devices does not, in and
of itself, constitute effective ambulation. Id.
Despite Ezzell’s reconstructive hip surgery in July 2008,
the ALJ did not consider the applicability of Listing 1.03. We
cannot agree that any error in this regard was harmless in light
of evidence in the record suggesting that, nearly a year after
surgery, Ezzell was still unable to ambulate effectively. For
example, two months shy of a full year from surgery,
consultative examiner, Alan Cohen, M.D., observed that Ezzell
used a simple cane for walking and standing and that the device
was needed for small walks. He further reported that Ezzell was
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unable to walk a block at a reasonable pace on a rough/uneven
surface and unable to climb a few steps at a reasonable pace
with the use of a single hand rail. These factors are included
in the Regulations’ non-exhaustive list of examples of
ineffective ambulation. Dr. Cohen further opined that Ezzell’s
ability to sit, stand, lift, and carry was moderately impaired
and that his ability to move about was severely impaired.
Significantly, in discussing Ezzell’s residual functional
capacity, the ALJ specifically referred to Dr. Cohen’s
observations, finding that they were “consistent with the
clinical record,” and “accurately describe[d] the functional
impact of the medically determinable impairments upon the
claimant.” Accordingly, the ALJ gave Dr. Cohen’s opinions
“significant weight.” Without any discussion, however, the ALJ
concluded - implicitly rejecting Dr. Cohen’s opinion - that
Ezzell failed to show that his impairment resulted in the
inability to ambulate effectively on a sustained basis.
We conclude that there is probative evidence in the record
to support a determination that Ezzell’s impairment meets or
equals Listing 1.03. Furthermore, the ALJ’s decision does not
include a sufficient discussion of the evidence and explanation
of its reasoning regarding Ezzell’s ability to ambulate
effectively such that meaningful judicial review is possible
with respect to Listing 1.03. Accordingly, we vacate the
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district court’s order and remand with instructions to remand
the case to the agency for further proceedings.
VACATED AND REMANDED
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