James Ezzell v. Nancy Berryhill, No. 16-1430 (4th Cir. 2017)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-1430 JAMES R. EZZELL, Plaintiff - Appellant, v. NANCY A. BERRYHILL, Acting Commissioner of Social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 Vacated and remanded by unpublished per curiam opinion.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 ______________ Unpublished opinions are not binding precedent in this circuit.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 of ALJ erred at Step Three 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 substantial evidence.” Cir. 2015) evidence is (internal that factual findings scintilla quotation which preponderance.” of supported by Mascio v. Colvin, 780 F.3d 632, 634 (4th a marks omitted). reasonable adequate to support a conclusion. mere are evidence but mind “Substantial might accept as It consists of more than a may be less than a 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 2 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). there is “ample evidence in the record to When 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.” Heckler, 783 F.2d 1168, 1172-73 (4th Cir. 1986); Cook v. 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 surgical 1.03 pertains arthrodesis of to major a “reconstructive weight-bearing surgery joint, or with inability to ambulate effectively . . . and return to effective ambulation did not occur, or is not expected to occur, within 12 months of onset.” The inability 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.03. to ambulate effectively means “an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very independently Ineffective seriously initiate, ambulation with the sustain, is individual’s or defined 3 complete generally ability to activities. as having 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.” 1, § 1.00(B)(2)(b)(2). 20 C.F.R., Pt. 404, Subpt. P, Appx. 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. example, two months shy of a full year from For 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 4 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. in the Regulations’ These factors are included non-exhaustive ineffective ambulation. list of examples of 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 observations, clinical impact ALJ finding record,” of the claimant.” specifically that and “accurately medically Accordingly, “significant weight.” concluded Ezzell - to were ALJ Dr. “consistent describe[d] determinable the to with the Dr. the functional impairments gave Cohen’s upon Cohen’s the opinions Without any discussion, however, the ALJ implicitly failed they referred show rejecting Dr. that impairment his Cohen’s opinion resulted - that 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 effectively with such respect to regarding that Ezzell’s meaningful Listing 1.03. 5 ability judicial to review Accordingly, we is ambulate possible vacate the district court’s order and remand with instructions to remand the case to the agency for further proceedings. VACATED AND REMANDED 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.