United States District Court, W.D. Virginia, Harrisonburg Division
C. Hoppe United States Magistrate Judge
Jeffery Scott Shiplett asks this Court to review the
Commissioner of Social Security's
(“Commissioner”) final decision denying his
applications for disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”) under Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. The
case is before me by the parties' consent under 28 U.S.C.
§ 636(c)(1). ECF No. 6. Having considered the
administrative record, the parties' briefs and oral
arguments, and the applicable law, I find that the
Commissioner's decision is not supported by substantial
evidence, and that the case must be remanded for further
Standard of Review
Social Security Act authorizes this Court to review the
Commissioner's final decision that a person is not
entitled to disability benefits. See 42 U.S.C.
§ 405(g); Hines v. Barnhart, 453 F.3d 559, 561
(4th Cir. 2006). The Court's role, however, is limited-it
may not “reweigh conflicting evidence, make credibility
determinations, or substitute [its] judgment” for that
of agency officials. Hancock v. Astrue, 667 F.3d
470, 472 (4th Cir. 2012). Instead, the Court asks only
whether the Administrative Law Judge (“ALJ”)
applied the correct legal standards and whether substantial
evidence supports the ALJ's factual findings. Meyer
v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).
evidence” means “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971). It is “more than a mere
scintilla” of evidence, id., but not
necessarily “a large or considerable amount of
evidence, ” Pierce v. Underwood, 487 U.S. 552,
565 (1988). Substantial evidence review takes into account
the entire record, and not just the evidence cited by the
ALJ. See Universal Camera Corp. v. NLRB, 340 U.S.
474, 487-89 (1951); Gordon v. Schweiker, 725 F.2d
231, 236 (4th Cir. 1984). Ultimately, this Court must affirm
the ALJ's factual findings if “conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled.” Johnson v. Barnhart, 434 F.3d 650,
653 (4th Cir. 2005) (per curiam) (quoting Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996)). However,
“[a] factual finding by the ALJ is not binding if it
was reached by means of an improper standard or
misapplication of the law.” Coffman v. Bowen,
829 F.2d 514, 517 (4th Cir. 1987).
person is “disabled” if he or she is unable 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.” 42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§
404.1505(a), 416.905(a). Social Security ALJs follow a
five-step process to determine whether an applicant is
disabled. The ALJ asks, in sequence, whether the applicant:
(1) is working; (2) has a severe impairment; (3) has an
impairment that meets or equals an impairment listed in the
Act's regulations; (4) can return to his or her past
relevant work based on his or her residual functional
capacity; and, if not (5) whether he or she can perform other
work. See Heckler v. Campbell, 461 U.S. 458, 460-62
(1983); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The applicant bears the burden of proof at steps one through
four. Hancock, 667 F.3d at 472. At step five, the
burden shifts to the agency to prove that the applicant is
not disabled. See id.
filed for DIB and SSI on February 29, 2012. Administrative
Record (“R.”) 18, ECF No. 9. He was forty-two
years old at the time, R. 68, and had worked primarily as a
roofer, R. 39. Shiplett alleged disability beginning October
1, 2011,  because of lower back problems and a nerve
problem in his left leg. R. 68.
claims were denied initially on May 24, 2012, R. 68-77,
79-88, 111-16, and on reconsideration on December 4, 2012, R.
90-99, 101-10, 119-24. Shiplett requested a hearing before an
ALJ, which was held on March 13, 2014. R. 143. Shiplett
appeared with counsel at the hearing and testified about his
past work, medical conditions, and the limiting effect these
conditions had on his daily activities. See R.
39-58. A vocational expert (“VE”) also testified
at this hearing regarding the nature of Shiplett's past
work and his ability to perform other jobs in the national
and local economy. See R. 57-65.
April 21, 2014, the ALJ issued a written opinion denying
Shiplett's applications for DIB and SSI. R. 18-29. He
found that Shiplett had two severe impairments: degenerative
disc disease of the lumbar spine and bilateral carpal tunnel
syndrome. R. 20. He determined, however, that neither
impairment met or equaled a listing. R. 20-21. The ALJ found
that Shiplett had the residual functional capacity
(“RFC”) to perform light work with some
climbing, lifting and carrying, and postural limitations. R.
21-27. Relying on the VE's testimony, the ALJ found at
step five that Shiplett could perform other jobs that existed
in significant numbers in the national and local economy. R.
27-29. Thus, the ALJ ruled that Shiplett was not disabled as
defined in the Act from the alleged onset date of October 1,
2011, through the date of his decision. R. 29. The Appeals
Council declined to review that decision, R. 1-3, and this
Relevant Medical Evidence
back problems began in August 2010 when he suffered an injury
at work while bending and twisting to lift a large piece of
sheet metal. R. 368. He went to the emergency department at
Augusta Health on August 13, 2010, with a chief complaint of
lower back pain radiating down into his left hip.
Id. He was diagnosed with an acute lumbar strain,
told to rest his back as much as possible, and given Flexeril
as a muscle relaxant and Vicodin for pain. R. 369. Shiplett
returned to the emergency department a week later. R. 366. An
X-ray of the lumbar spine did not reveal any fractures. R.
367. Shiplett had mild tenderness upon palpation over his
left lumbar paraspinal muscles, but a normal range of motion
without pain. Id. The emergency room doctor noted
Shiplett had some mild weakness to his left lower extremity
as well as some sensory changes and a normal gait.
Id. The physician diagnosed possible disk herniation
and “back pain.” Id. Shiplett was
advised to visit a primary care physician to follow up for
this injury. Id. Shiplett was then given Toradol and
morphine for pain and two Percocet prior to his discharge,
along with prescriptions for Percocet and Medrol Dosepak.
again visited the emergency department on November 21 with a
chief complaint of lower back pain. R. 362. J. Scott Just,
M.D., saw Shiplett and performed a physical examination.
Id. Dr. Just noted normal strength throughout and no
sign of atrophy. Id. The exam revealed tenderness in
the paralumbar spinal musculature bilaterally, but no
thoracic or lumbar spine tenderness. R. 363. Dr. Just
diagnosed Shiplett with acute exacerbation of low back pain
as well as bilateral carpal tunnel syndrome. Id.
Shiplett was placed in bilateral Velcro wrist splints and
given prescriptions for Flexeril, Naproxen, and Ultram.
Id. On November 26, Shiplett returned to the
emergency department with complaints of tingling of the
bilateral hands in the thumb and fingers 2 through 5. R. 360.
Doctors determined that the strength in both hands was
normal, but his Phalen test was positive. Id.
Shiplett was advised to continue wearing the Velcro splints,
applying ice or heat, and taking the Naproxen and Ultram.
January 20, 2011, Shiplett underwent a right carpal tunnel
release performed by Ramon Esteban, M.D. R. 358. On February
10, an exam of his left hand revealed tingling and decreased
gross sensation in the median nerve distribution, and he had
a positive Phalen test, but a negative Tinel test. R. 406.
Because the early indications from his right carpal tunnel
release yielded good results, Shiplett decided to proceed
with the left carpal tunnel release. Id. Dr. Esteban
performed the left carpal tunnel release the same day.
27, Shiplett first visited Matthew Pollard, M.D. R. 324.
Shiplett's chief complaint dealt with back pain radiating
into his thighs. Id. During the visit, Dr. Pollard
conducted a comprehensive orthopedic exam. Id. He
noted that Shiplett stood with an erect posture and ambulated
normally without difficulty; had normal passive range of
motion and strength of both lower extremities; had no
deformities or tenderness when examining the lumbar spine;
and exhibited negative straight leg raise on both the right
and left. Id. Dr. Pollard assessed Shiplett with
chronic lower back pain with pseudo-radicular lower extremity
radiation that had not been responsive to medical care since
the injury. R. 325. Dr. Pollard scheduled an MRI with plans
to follow up once completed. Id.
C. Parekh, M.D., reviewed the results of the MRI on July 6.
R. 386. The MRI revealed severe end plate changes, loss of
normal disc signal intensity, and disc space narrowing at
multiple levels. Id. There was no vertebral
compression, however, and alignment was normal. Id.
Prominent disc bulges were present at ¶ 3-L4 and L4-L5.
Id. Dr. Parekh noted the presence of a questionable
slight mass effect on the bilateral L5 nerve roots at the
L4-L5 level. Id. At L5-S1, there was a caudally
migrated broad-based left posterolateral disc herniation with
mass effect on the left S1 nerve root. Id.
visited Dr. Pollard on July 13 for a scheduled follow-up
after the MRI. R. 323. Dr. Pollard indicated that the MRI
revealed degenerative joint disease and degenerative disc
disease. Id. It also showed a small Herniated
Nucleus Pulposus (“HNP”) to the left at ¶
5-S1, with some S1 nerve compression. Id. Dr.
Pollard assessed Shiplett with chronic low back pain,
referred him to the pain center at Augusta, set him up for a
fast track Epidural Steroid Injection (“ESI”),
and gave him a prescription for Mobic. Id. Shiplett
visited the emergency department again a few days later on
July 18, where he was diagnosed with exacerbation of chronic
back pain and advised to follow Dr. Pollard's treatment
plan. R. 350. On August 22, Shiplett received a lumbar
interlaminar epidural injection at ¶ 4-L5. R. 348.
returned to Dr. Pollard on September 6 for a scheduled
follow-up and still reported significant lower back pain. R.
322. Dr. Pollard noted Shiplett had vague sclerotomal
radiation down the back of the thighs and that the ESI did
not help alleviate any of his pain. Id. Dr. Pollard
assessed Shiplett with chronic low back pain, which had been
ongoing for fifteen months by this time, and attributed it to
the degenerative disc disease and bulging disc at ¶
5-S1. Id. During this appointment, Dr. Pollard
advised Shiplett of his options, including surgery, and
ordered a lumbar discography. Id.
discography was performed on September 26, revealing chronic
lumbar pain. R. 383. At the L3-L4 level, the exam showed an
annular tear anteriorly consistent with a Dallas grade III
tear. Id. At the L4-L5 level, Shiplett had a radial
tear, consistent with a full thickness, or grade V, tear. R.
384. At the L5-S1 level, Shiplett had a full thickness
annular tear as well as fraying and disruption of the annular
tissues posteriorly, consistent with a grade III tear of the
annulus contained within the annular tissues. Id.
During the procedure, Shiplett said the tears at ¶ 3-L4
and L5-S1 were painless and the annular tear at ¶ 4-L5
was extremely painful. R. 383. On October 21, Dr. Pollard
reviewed the discography results with Shiplett and noted that
this pain had been ongoing for sixteen months and that
Shiplett had not responded to conservative care. Id.
During this appointment, Shiplett indicated his desire to
proceed with surgery for a circumferential fusion at ¶
4-L5. Id. They also discussed the use of narcotic
medications, which up to that point had been helping
Shiplett, but were not a long-term solution according to Dr.
Pollard. Id. Dr. Pollard also noted that while
surgery could not guarantee that Shiplett would be able to
return to his past work as a roofer, he expected Shiplett to
be able to find some form of gainful employment. Id.
underwent surgery for his back on October 18. R. 300. Dr.
Pollard performed a laminectomy, specifically an anterior
posterior spinal fusion L4-L5 through a direct lateral
approach. Id. Dr. Parekh reviewed a computerized
tomography (“CT”) scan immediately following the
surgery. R. 380. He reported that the positioning of
intradiscal cages at ¶ 4-L5 was satisfactory and that
there was a metallic stabilization device between L4 and L5
spinous processes. Id. The CT scan also showed a
bulge at ¶ 4-L5, a left posterolateral bulge at ¶
5-S1 with possible minimal mass effect on the left S1 nerve
root, postoperative soft tissue air, and normal vertebral
alignment. Id. Rebecca D. Dameron, M.D., reviewed
the post-surgery X-ray and reported similar findings. R. 381.
Dr. Dameron also noted marginal osteophytosis involving the
superior end plate of L4 and the inferior end plate of L3.
Id. Once cleared, Shiplett was discharged on October
21 with a scheduled follow-up visit with Dr. Pollard in two
to three weeks. R. 298.
had his first follow-up visit with Dr. Pollard on November 7.
R. 320. Subjectively, Shiplett reported that he was still in
a fair amount of pain, both from the incisions and in his
left leg, throughout his thigh and down to his ankle.
Id. Dr. Pollard indicated that the pain was likely
approach based. Id. He also reported that the
incisions had healed and that the X-rays revealed a healing
fusion in the back. Id. Dr. Pollard scheduled
Shiplett for a follow-up in one month, gave him prescriptions
for oxycontin and Neurontin, refilled his oxycodone, and told
him to supplement with Tylenol and Motrin. Id.
December 1, Shiplett went to the emergency department at
Augusta Health because of his back pain. R. 344. Shiplett
denied any recent falls and withdrawal symptoms, but noted
that his leg occasionally gave out on him, and he claimed
persistent pain since the surgery. Id. He was
examined by Thomas Carter, M.D., who diagnosed him with
acute-on-chronic lumbar pain with a history of degenerative
disc disease. R. 345. Dr. Carter performed a physical
examination that revealed tenderness in the left lumbosacral
distribution, a positive straight-leg raise test on the left,
good deep tendon reflexes throughout the lower extremities,
and decreased plantar flexion and dorsiflexion on the left.
Id. Dr. Carter wrote prescriptions for Dilaudid,
Phenergan, Toradol, oxycodone, and Flexeril. Id.
Shiplett was instructed to follow-up with Dr. Pollard as soon
as possible. Id.
saw Dr. Pollard later that week on December 7. R. 319. Dr.
Pollard noted that Shiplett was still subjectively
experiencing pain and had weakness with knee extension.
Id. X-rays revealed a stable healing fusion at
¶ 4-L5, but Dr. Pollard still assessed lumbar
radiculopathy. Id. He noted that the left lower
extremity was radiating pain, likely representing L4
radiculopathy caused by retraction during the surgery.
Id. Dr. Pollard refilled Shiplett's Neurontin,
gave him a prescription for ...