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Shiplett v. Colvin

United States District Court, W.D. Virginia, Harrisonburg Division

November 16, 2016

JEFFERY SCOTT SHIPLETT, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner, Social Security Administration, Defendant.

          MEMORANDUM OPINION

          Joel C. Hoppe United States Magistrate Judge

         Plaintiff 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 administrative proceedings.

         I. Standard of Review

         The 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).

         “Substantial 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).

         A 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.

         II. Procedural History

         Shiplett 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, [1] because of lower back problems and a nerve problem in his left leg. R. 68.

         Shiplett's 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.

         On 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”)[2] to perform light work[3] 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 appeal followed.

         III. Facts

         A. Relevant Medical Evidence

         Shiplett's 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. Id.

         Shiplett 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. Id.

         On 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. Id.

         On June 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.

         Shashank 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.

         Shiplett 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.

         Shiplett 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.

         This 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.

         Shiplett 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.

         Shiplett 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.

         On 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.

         Shiplett 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 ...


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