REPORT AND RECOMMENDATION
MARY GORDON BAKER, Magistrate Judge.
The Plaintiff, Tamela Kline, through counsel, brought this action to obtain judicial review of an unfavorable final administrative decision denying benefits on her March 28, 2013 application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). This matter was referred to the United States Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). Having carefully considered the record, including the parties' briefs, the administrative record and the applicable authority, for the reasons stated herein, the undersigned recommends that the ALJ's decision be reversed and that this case be remanded to the Commissioner.
Procedural History and ALJ's Findings
The Plaintiff was born on July 6, 1962, and was 50 years old on the alleged onset of disability date, February 1, 2013. (R. 120.) The Plaintiff filed SSI on March 28, 2013. (R. 120.) The Plaintiff claimed SSI due to a right wrist fracture. (R. 139.)
The Plaintiff's claim was initially denied and denied on reconsideration. (R. 60-63, 68-69.) The Plaintiff requested a hearing, which was held on April 30, 2015. (R. 24-40.) The Plaintiff was represented by counsel. The Plaintiff testified at the hearing, as well as a vocational expert ("VE"). The Administrative Law Judge ("ALJ") issued a Decision denying SSI on June 12, 2015, and it is now the Commissioner's final decision for purposes of judicial review. (R. 11-19.) The Plaintiff filed an appeal to the Appeals Council which was denied review. (R. 1-6.)
In making the determination that the Plaintiff was not entitled to benefits, the Commissioner adopted the following findings of the ALJ's Decision:
(1) The claimant has not engaged in substantial gainful activity since March 11, 2013, the application date (20 CFR 416.971 et seq.).
(2) The claimant has the following severe combination of impairments: right wrist status post fracture and surgery, right elbow lateral epicondylitis, and left ulnar nerve compression (20 CFR 416.920(c)).
(3) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
(4) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform less than the full range of light work1 as defined in 20 CFR 416.967(b) except that she can frequently use her bilateral upper extremities for pushing and pulling, and fine and gross manipulations.
(5) The claimant is unable to perform any past relevant work (20 CFR 416.965).
(6) The claimant was born on July 6, 1962 and was 50 years old, which is defined as an individual closely approaching advanced age, on the date the application was filed (20 CFR 416.963).
(7) The claimant has a limited education and is able to communicate in English (20 CFR 416.964).
(8) Transferability of job skills is not material to the determination of disability because using the Medical Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(9) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
(10) The claimant has not been under a disability, as defined in the Social Security Act, since March 11, 2013, the date the application was filed (20 CFR 416.920(g)).
(R. 11-19.)
Applicable Law
The Act provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. 42 U.S.C. § 1381 et. seq.; 20 C.F.R. § 416.110. "Disability" is defined in the Act as 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) has an impairment which prevents past relevant work; and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 416.920; see also Brown v. Comm'r, 873 F.3d 251, 254-55 (4th Cir. 2017). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 416.920; see also Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). The plaintiff "bears the burden of production and proof during the first four steps of the inquiry." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). If the plaintiff "is able to carry this burden through the fourth step, the burden shifts to the Secretary in the fifth step to show that other work is available in the national economy which the claimant could perform." Id. at 1203.
The scope of judicial review by the federal courts in disability cases is "limited to determining whether the findings of the Secretary are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Richardson v. Perales, 402 U.S. 389 (1971). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "substantial evidence" is defined as:
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence consists of more than a mere scintilla of evidence but may be less than a preponderance.
Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996) (internal quotation marks and citations omitted).
Thus, it is the duty of this Court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings, and that his conclusion is rational. Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Discussion
The Plaintiff asserts the ALJ erred in the following three ways (verbatim):
1. Harmful error occurred when the ALJ failed to consider Listing 1.07: Fracture of an Upper Extremity.
2. The ALJ cannot use Ms. Kline's low-income status to deny her benefits.
3. The ALJ's findings regarding Plaintiff's residual functional capacity and the ALJ's hypotheticals to the vocational expert were not supported by substantial evidence.
(Dkt. No. 12 at 1.)
1. ALJ's Failure to Consider Listing 1.07
"An ALJ is not required to explicitly identify and discuss every possible listing; rather, he is compelled to provide a 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." Ezzell v. Berryhill, 688 F. App'x 199, 200 (4th Cir. 2017) (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). An ALJ "must identify `the relevant listed impairments' and compare `each of the listed criteria to the evidence of [the claimant's] symptoms'" when "ample evidence" exists to support that a claimant meets a listed impairment. Id. (quoting Cook v. Heckler, 783 F.2d 1168, 1172-73 (4th Cir. 1986)).
Listing 1.07 states the following:
1.07 Fracture of an upper extremity with nonunion of a fracture of the shaft of the humerus, radius, or ulna, under continuing surgical management, as defined in 1.00M, directed toward restoration of functional use of the extremity, and such function was not restored or expected to be restored within 12 months of onset.
20 C.F.R. § Pt. 404, Subpt. P, App. 1. "Under continuing surgical management, as used in 1.07. . ., refers to surgical procedures and any other associated treatments related to the efforts directed toward the salvage or restoration of functional use of the affected part." Id.
The ALJ did not mention or analyze Listing 1.07 in her Decision. The Commissioner argues that the ALJ's omission was proper because the Plaintiff does not meet the requirements of Listing 1.07 and remand is unnecessary. (Dkt. No. 13 at 7-11.) The Commissioner goes about her own analysis in her brief to conclude that the Plaintiff does not meet Listing 1.07 in an attempt to demonstrate why the ALJ's omission of any analysis was proper. (Id.)
The district court in this case was recently faced with a nearly identical issue in Coe v. Berryhill, No. 2:16-CV-03118-TLW, 2018 WL 1443950, (D.S.C. Mar. 23, 2018). In Coe, the ALJ had failed to analyze whether the plaintiff met the requirements of Listing 12.05. Whether the plaintiff in Coe met the listing was "a close question." Id. at 2. The district court reversed and remanded the ALJ's Decision because the court found that it was "appropriate to require additional analysis by the ALJ so that a conclusion can be reached regarding whether substantial evidence supports the decision of the ALJ." Id. at 2. The district court found that, rather than the court attempting to determine whether the plaintiff met the listing, "the better approach is for this case to be remanded so that the ALJ can make a determination as to (i) whether listing 12.05 applies to Plaintiff's claim, and then, if so, (ii) conduct a listing 12.05 analysis." Id. at 2.
The undersigned does not see any reason to depart from the district court's reasoning in Coe, which was decided less than two months ago. The Commissioner argues in her brief that "[a] nonunion is only a threshold factor in the Listing 1.07 analysis." (Dkt. No. 13 at 7.) No dispute exists that the Plaintiff had a nonunion of her right distal radius. (R. 13, 16.) The "threshold factor" for a Listing 1.07 analysis was met, yet the ALJ failed to discuss Listing 1.07 at all.2
Some evidence exists beyond the nonunion to support a finding that the Plaintiff met the requirements of Listing 1.07. The Plaintiff fell and broke her right radius on January 18, 2013. (R. 239.) The Plaintiff had surgery as a result on March 19, 2013. (R. 229.) Following surgery, the Plaintiff was prescribed occupational therapy with a goal of "100% use" of her right wrist. (R. 301.) The Plaintiff's attendance at therapy was not consistent, as noted by the ALJ (R. 16), however the record shows that the Plaintiff did continue going on some basis until August of 2013. (R. 301.) An X-ray in November of 2014 showed the existing fracture was nonunited and a "questionable nondisplaced triquetral fracture" in her right wrist as well. (R. 371.)
Despite the Commissioner's argument, there is some evidence that the Plaintiff meets the requirements of Listing 1.07. The Plaintiff suffered a fracture of her radius and was under continuing surgical management directed toward restoration of functional use of the extremity. The November 2014 x-ray shows that the nonunion remained for well over a year and that a second fracture may have occurred in the Plaintiff's right wrist. This court cannot conclude from the ALJ's Decision whether Listing 1.07 applies.3 Further analysis by the ALJ is needed. As the district court found in Coe, the "better course" for this case is to reverse and remand with instructions for the ALJ to determine whether Listing 1.07 applies to Plaintiff's claim, and then, if so, conduct a Listing 1.07 analysis.
Remaining Allegations of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not address the remaining two issues as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). However, as part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration the additional allegation of error raised by the Plaintiff.4
Conclusion
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED.
