MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOI ELIZABETH PEAKE, Magistrate Judge.
Plaintiff David A. Speer ("Plaintiff") brought this action pursuant to Section 205(g) of the Social Security Act (the "Act"), as amended (42 U.S.C. § 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security denying his claim for Disability Insurance Benefits under Title II of the Act. The parties have filed cross-motions for judgment, and the administrative record has been certified to the Court for review.
I. PROCEDURAL HISTORY
Plaintiff protectively filed an application for Disability Insurance Benefits on January 3, 2013, alleging a disability onset date of November 22, 2012. (Tr. at 30.)2 His application was denied initially (Tr. at 89-100, 132-35) and upon reconsideration (Tr. at 101-11, 138-45). Thereafter, Plaintiff requested an administrative hearing de novo before an Administrative Law Judge ("ALJ"). (See Tr. at 30.) On November 17, 2014, Plaintiff, along with his non-attorney representative and an impartial vocational expert ("VE"), attended the subsequent hearing. (Tr. at 46-65.) The ALJ ultimately concluded that Plaintiff was not disabled within the meaning of the Act (Tr. at 112-23), and, on July 7, 2016, the Appeals Council granted Plaintiff's request for review of the decision, correcting Plaintiff's date last insured for DIB from December 31, 2014, to December 31, 2015, and remanding the case for further administrative proceedings, to include reevaluation of the opinion of treating physician Dr. David E. Strom (Tr. at 128-31). On May 12, 2017, Plaintiff, his non-attorney representative, and another VE attended a second hearing before the same ALJ. (Tr. at 66-88.) The ALJ thereafter issued a decision finding Plaintiff not disabled (Tr. at 27-40), and, on February 5, 2018, the Appeals Council denied Plaintiff's request for review, thereby making the ALJ's ruling the Commissioner's final decision for purposes of judicial review (Tr. at 1-6, 258-60, 331-32).
II. LEGAL STANDARD
Federal law "authorizes judicial review of the Social Security Commissioner's denial of social security benefits." Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the scope of review of such a decision is "extremely limited." Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). "The courts are not to try the case de novo." Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, "a reviewing court must uphold the factual findings of the ALJ if they are supported by substantial evidence and were reached through application of the correct legal standard." Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal quotation omitted).
"Substantial evidence means `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). "It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). "If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is substantial evidence." Hunter, 993 F.2d at 34 (internal quotation marks omitted).
"In reviewing for substantial evidence, the court should not undertake to re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the [ALJ]." Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ." Hancock, 667 F.3d at 472. "The issue before [the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the ALJ's finding that [the claimant] is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that "[a] claimant for disability benefits bears the burden of proving a disability." Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). In this context, "disability" means the "`inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.'" Id. (quoting 42 U.S.C. § 423(d)(1)(A)).3
"The Commissioner uses a five-step process to evaluate disability claims." Hancock, 667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). "Under this process, the Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not, could perform any other work in the national economy." Id.
A finding adverse to the claimant at any of several points in this five-step sequence forecloses a disability designation and ends the inquiry. For example, "[t]he first step determines whether the claimant is engaged in `substantial gainful activity.' If the claimant is working, benefits are denied. The second step determines if the claimant is `severely' disabled. If not, benefits are denied." Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at the first two steps, and if the claimant's impairment meets or equals a "listed impairment" at step three, "the claimant is disabled." Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two, but falters at step three, i.e., "[i]f a claimant's impairment is not sufficiently severe to equal or exceed a listed impairment," then "the ALJ must assess the claimant's residual functional capacity (`RFC')." Id. at 179.4 Step four then requires the ALJ to assess whether, based on that RFC, the claimant can "perform past relevant work"; if so, the claimant does not qualify as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior work, the analysis proceeds to the fifth step, which "requires the [Government] to prove that a significant number of jobs exist which the claimant could perform, despite the claimant's impairments." Hines, 453 F.3d at 563. In making this determination, the ALJ must decide "whether the claimant is able to perform other work considering both [the claimant's RFC] and [the claimant's] vocational capabilities (age, education, and past work experience) to adjust to a new job." Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carry its "evidentiary burden of proving that [the claimant] remains able to work other jobs available in the community," the claimant qualifies as disabled. Hines, 453 F.3d at 567.
III. DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in "substantial gainful activity" since his alleged onset date. The ALJ therefore concluded that Plaintiff met his burden at step one of the sequential evaluation process. (Tr. at 32.) At step two, the ALJ further determined that Plaintiff suffered from the following severe impairments:
degenerative disc disease, status post open reduction internal fixation, left distal tibia fracture; hypertension, history of diabetes mellitus and osteoarthritis. (Id.) The ALJ found at step three that none of these impairments, individually or in combination, met or equaled a disability listing. (Tr. at 33.) Therefore, the ALJ assessed Plaintiff's RFC and determined that he could perform light work with further limitations. Specifically, the ALJ found that Plaintiff can
occasionally climb ladders and occasionally balance. [Plaintiff] should avoid concentrated exposure to hazards (heights).
(Id.) Under step four of the analysis, the ALJ determined that Plaintiff could not perform his past relevant work. (Tr. at 38.) However, the ALJ concluded at step five that, given Plaintiff's age, education, work experience, and RFC, along with the testimony of the VE regarding those factors, Plaintiff could perform other jobs available in the national economy and therefore was not disabled. (Tr. at 39-40.)
Plaintiff now raises three challenges to the ALJ's decision. First, Plaintiff argues that "the ALJ disregarded important evidence and the law" and did "not show good reasons for rejecting treating sources' opinions and [Plaintiff's] testimony." (Pl.'s Br. [Doc. #11] at 9.) Second, Plaintiff contends that the ALJ failed to "make a clear, well-explained finding about [Plaintiff's] need for [a] cane." (Id. at 21-22.) Third, Plaintiff asserts that "the ALJ failed to evaluate [Plaintiff's] obesity." (Id. at 23.) After a careful review of the record, the Court agrees that the ALJ's failure to properly address Plaintiff's need for a cane merits remand. In light of this finding, the Court need not consider Plaintiff's additional contentions at this time.
Plaintiff's contentions arise out of an injury he suffered on November 22, 2012, when he fell off a roof and fractured his tibia and injured his ankle. He underwent several surgeries to his ankle, and although his ankle healed, it remained rotated or otherwise deformed, resulting in his left leg being several centimeters shorter than his right. (See, e.g., Tr. at 564.)5 Plaintiff faults the ALJ for disregarding his testimony that he spent nearly two years on crutches following his injury, that he had been using the cane since giving up the crutches, and that he was still using the cane in 2017, even to get around the house. (Pl.'s Br. at 21-22 (citing Tr. at 53-54, 75-78).) Plaintiff notes that Dave N. Buckland, PA-C, documented Plaintiff's use of a cane numerous times in the record. (Id. at 21 (citing Tr. at 553, 559-60, 562, 564, 578, 580, 586).) Plaintiff further contends that the ALJ failed to "make a clear, well-explained finding about [Plaintiff's] need for the cane" and instead "evaded the issue" and just "recited some legal language" from the definition of `inability to ambulate effectively' in the Listings, concluding that Plaintiff "does not use a walker, two crutches or two canes." (Id. at 22 (citing Tr. at 37); see also 20 C.F.R. Pt. 404, Subpt. P, App'x 1, §§ 1.00.B.2.b(1), 1.02, 1.03, 1.04, 1.05, 1.06 (2017).) Plaintiff notes that "the ALJ [n]ever claimed [Plaintiff] does not use one cane" and [n]ever acknowledged the vocational expert testimony that use of one cane, with the ALJ's other RFC restrictions, means a person cannot do a significant number of jobs." (Id. (referencing Tr. at 86).)
"The requirement to use a hand-held assistive device may ... impact [a claimant's] functional capacity by virtue of the fact that one or both upper extremities are not available for such activities as lifting, carrying, pushing, and pulling." 20 C.F.R. Part 404, Subpt. P, App'x 1, § 1.00(J)(4). Accordingly, an ALJ must consider the impact of a "medically required" hand-held assistive device on a claimant's RFC. See McLaughlin v. Colvin, No. 1:12CV621, 2014 WL 12573323, at *2 (M.D.N.C. July 25, 2014); Social Security Ruling 96-6p, Policy Interpretation Ruling Titles II and XVI: Determining Capability to Do Other Work — Implications of a Residual Functional Capacity for Less Than a Full Range of Sedentary Work, 1996 WL 374185, at *7 (July 2, 1996) ("SSR 96-9p").
SSR 96-9p explains the impact of an assistive device on an RFC for sedentary work, and courts within this circuit have applied this ruling "to the light occupational base as well, since it involves even greater lifting than sedentary work.... Additionally, a plaintiff always bears the burden of proving his RFC, and therefore the standards in SSR 96-9p can be useful in determining if a plaintiff met that burden." Timmons v. Colvin, No. 3:12CV609, 2013 WL 4775131, at *8 (W.D.N.C. Sept. 5, 2013). Notably, SSR 96-9p provides the following guidance:
To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information). The [ALJ] must always consider the particular facts of a case. For example, if a medically required hand-held assistive device is needed only for prolonged ambulation, walking on uneven terrain, or ascending or descending slopes, the unskilled sedentary occupational base will not ordinarily be significantly eroded.
SSR 96-9p, 1996 WL 374185, at *7.
Here, the ALJ's consideration of Plaintiff's need for a cane consisted of the following analysis:
[Plaintiff] indicated that he uses a cane to ambulate. While [Plaintiff] had occasions of irregular gait, typically his gait, station and ambulation was [sic] normal. He had no strength, sensory or reflex deficits. He had no acute office visits, emergency room visits or inpatient visits secondary to a fall since 2012 when he fell while [sic] off a house while working. The radiology reports showed mild post-traumatic ankle arthritis but [Plaintiff] had no ankle instability. [Plaintiff] had no diabetic complications that would exacerbate his ability to ambulate i.e., peripheral neuropathy. The evidence of record does not support the conclusion that [Plaintiff's] impairment interferes seriously with his ability to initiate, sustain or complete activities or sustain a reasonable walking pace over a sufficient distance to carry out activities of daily living or inability to walk a block at a reasonable pace on a rough or uneven surface. [Plaintiff] does not use a walker, two crutches or two canes.
(Tr. at 37.) The ALJ's above-quoted analysis falls short in two respects.
First, and most significantly, the ALJ neglected to assess PA-C Buckland's opinion, offered on July 9, 2015, that "because of [Plaintiff's] impaired gait he does require the use of a[n] assisted walking device in the form of a cane." (Tr. at 580 (emphasis added).) This assessment repeats throughout the record, including August 2016 (Tr. at 564), November 2016 (Tr. at 560), and February 2017 (Tr. at 553). Although at the time Plaintiff filed his claims, PA-C Buckland did not qualify as an "acceptable medical source" under the regulations, see 20 C.F.R. § 404.15(a)(8) (including physicians assistants as acceptable medical sources but only for claims filed on or after March 27, 2017), his opinion was still entitled to consideration and weighing by the ALJ, see Social Security Ruling 06-03p, Titles II and XVI: Considering Opinions and Other Evidence from Sources Who Are Not "Acceptable Medical Sources" in Disability Claims: Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies, 2006 WL 2329939, at *3, 4 (Aug. 9, 2006) ("SSR 06-03p") (noting that "[o]pinions from [] medical sources, who are not technically deemed "acceptable medical sources" under our rules, are important and should be evaluated on key issues such as impairment severity and functional effects" and further noting that "the factors in 20 [C.F.R. §] 404.1527(d) ... can be applied to opinion evidence from `other sources.'").6 PA-C Buckland's opinion is supported by his observations on numerous occasions throughout the relevant period in this case that Plaintiff limped, walked with an irregular gait, and/or waddled. (See Tr. at 491, 494, 523, 526, 583, 590.) The ALJ's failure to evaluate that opinion renders his analysis regarding Plaintiff's need for a cane unsupported by substantial evidence.7
Second, as Plaintiff argues, the ALJ conflated his evaluation of whether Plaintiff's ankle impairment met or equaled any listings with his obligation to assess the medical necessity of Plaintiff's cane. The latter half of the ALJ's above-quoted analysis recites from the definition of "inability to ambulate effectively" contained in the introduction to the musculoskeletal listings. (See Tr. at 37; see also 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 1.00B.2.b(1) (2017).) Under Listing 1.00,
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 hand-held assistive device(s) that limits the functioning of both upper extremities.
However, an "inability to ambulate effectively" is a significant requirement of five musculoskeletal listings which, if met or equaled, establish per se disability regardless of age, education, work experience, or RFC, but such a showing is certainly not required to demonstrate the (typically) less dispositive matter of the medical necessity of a cane. Thus, the ALJ's findings would support the conclusion that Plaintiff did not meet the Listings, but these findings did not resolve the question of Plaintiff's need for the cane.
Moreover, the ALJ's error in this regard is not harmless. The VE testified that, if an individual with Plaintiff's RFC had to use a cane even just for balance (let alone for ambulation), no jobs existed in significant numbers in the national economy that Plaintiff could perform. (See Tr. at 86.)8 Accordingly, the ALJ's failure to properly analyze the medical necessity of Plaintiff's cane requires remand of this matter for further administrative proceedings.9
IT IS THEREFORE RECOMMENDED that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the ALJ for proceedings consistent with this Recommendation. To this extent, Defendant's Motion for Judgment on the Pleadings [Doc. #15] should be DENIED, and Plaintiff's Motion for a Judgment Reversing or Modifying the Decision of the Commissioner of Social Security or Remanding the Cause for a Rehearing [Doc. #10] should be GRANTED. However, to the extent that Plaintiff's motion seeks an immediate award of benefits, it should be DENIED.
