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Partipilo v. Colvin

United States District Court, M.D. Tennessee, Northeastern Division

January 15, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security.


JULIET GRIFFIN, Magistrate Judge.

The plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying the plaintiff's claim for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") as provided by the Social Security Act.

Upon review of the Administrative Record as a whole, the Court finds that the Commissioner's determination that the plaintiff is not disabled under the Act is supported by substantial evidence in the record as required by 42 U.S.C. § 405(g) and that the plaintiff's motion for judgment on the administrative record (Docket Entry No. 14) should be DENIED.


On May 24, 2010, the plaintiff protectively filed for SSI and DIB, alleging a disability onset date of December 3, 2005, due to bipolar disorder, attention deficit disorder ("ADD"), panic attacks, arthritis, degenerative disease, scoliosis, and breathing problems. (Tr. 9, 87-98, 148, 171-72.) Her applications were denied initially and upon reconsideration. (Tr. 54-57, 60-63, 68-71.) The plaintiff appeared and testified at a hearing before Administrative Law Judge Robert L. Erwin ("ALJ") on October 17, 2011 (tr. 24-49), and amended her alleged onset date to December 31, 2009. (Tr. 36.) On January 26, 2012, the ALJ entered an unfavorable decision. (Tr. 9-19.) On June 19, 2013, the Appeals Council denied the plaintiff's request for review of the hearing decision, thereby making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3.)


The plaintiff was born on June 1, 1969, and she was 40 years old as of her amended alleged disability onset date. (Tr. 87.) She attended college but did not graduate and has worked as a mason, a wrestler, and a model. (Tr. 33, 36.)

A. Chronological Background: Procedural Developments and Medical Records

The plaintiff received outpatient mental health treatment at Plateau Mental Health Center ("Plateau") from January to March, 2010. (Tr. 208-22.) She was diagnosed with attention-deficit hyperactivity disorder ("ADHD"), panic disorder without agoraphobia, and borderline personality disorder; assigned a Global Assessment of Functioning ("GAF") score of 65;[1] and prescribed, inter alia, Xanax, clonidine, Ambien, and BuSpar.[2] (Tr. 213-15, 217, 222.)

On March 10, 2010, the plaintiff presented to the Cookeville Regional Medical Center ("CRMC") emergency room with shoulder and back pain. (Tr. 238-43.) She estimated that her pain was a 4 out of 10 on the pain scale and was treated with Toradol and Decadron. (Tr. 239, 241.)

She received physical therapy at CRMC from May to June 2010. (Tr. 227-37.) At an initial evaluation on May 27, 2010, the plaintiff reported having had scoliosis since she was a teenager.[3] (Tr. 235.) She said that her back pain radiated down her right leg; increased with bending, prolonged standing, walking, sitting, and wrestling; and decreased with resting and lying. Id. The physical therapist noted that, upon examination, the plaintiff had "forward head and shoulders, decreased lumbar lordosis, moderate thoracic kyphosis[4] and scoliosis with concavity to the left in the upper to mid thoracic region and compensatory curve with concavity to the right in the upper lumbar to lower thoracic region." Id. The plaintiff also demonstrated "moderate muscle spasm in the thoracic and lumbar paraspinal muscles with tenderness to palpation, " decreased active range of motion in her low back, positive straight leg raises bilaterally, and decreased mobility/ambulation. (Tr. 235-36.) Her sacroiliac joint range of motion was "near normal" bilaterally, and the range of motion in her neck and bilateral shoulders was within functional limits. (Tr. 235.) The physical therapist recommended that the plaintiff receive therapy three times a week for four weeks. (Tr. 237.) The plaintiff attended physical therapy sessions on June 7 and June 9 but did not return. (Tr. 229-31.)

An x-ray of the plaintiff's thoracic spine on April 29, 2010, was abnormal with "marked degenerative arthritis involving thoracolumbar vertebrae" and sclerosis in the lower thoracic vertebrae. (Tr. 224.) Dr. Pushpendra Jain reviewed the x-ray and recommended a CT scan of the thoracic spine, which was taken in June and showed normal paraspinous soft tissues and vertebra. (Tr. 224-25.) An August 25, 2010 MRI showed right thoracic scoliosis with "posterior disc herniation at the T4-5 level with narrowing of the thoracic cord." (Tr. 264.) An x-ray of her lumbar spine on May 20, 2010, revealed "[o]steoarthritis involving multiple lumbar vertebrae mainly L2-L3 and also involving L1." (Tr. 226.)

On July 7, 2010, Dr. Robert Paul, Ph.D., a nonexamining Tennessee Disability Determination Services ("DDS") psychological consultant, completed a Psychiatric Review Technique ("PRT"), and found that the plaintiff had "ADHD (mild/improved);" "[p]anic [disorder] without agoraphobia (improved);" and borderline personality disorder. (Tr. 244-57.) Dr. Paul opined that the plaintiff experienced mild limitation in the activities of daily living; mild limitation maintaining social functioning; and mild limitation maintaining concentration, persistence, or pace with no episodes of decompensation.[5] (Tr. 254.)

On August 10, 2010, Dr. Donita Keown, a DDS consultative physician, physically examined the plaintiff. (Tr. 259-61.) The plaintiff described her back pain as "constant" and "worsening" and said that it increased with bending, twisting, and lifting. (Tr. 259.) She also reported that she had smoked for 27 years and complained of feeling "short-winded." Id. Upon physical examination, Dr. Keown observed that the plaintiff had kyphoscoliotic curvature convexity of the mid-thoracic spine and a compensatory curve at the thoracolumbar junction. (Tr. 260.) In her cervical spine, the plaintiff's rotation was 75 degrees left and 70 degrees right, flexion was 55 degrees, and extension was 40 degrees. Id. Dr. Keown noted that "[w]hen relaxed, the claimant has the neck flexed at 30 degrees." Id. The plaintiff had full range of motion in her shoulder joints, bilateral wrist and hand joints, hips, knees, and ankles. Id. She demonstrated negative seated straight leg raises but had positive supine straight leg raises at 45 degrees. Id. Her cranial nerves were intact, she had 5/5 strength and 2 deep tendon reflexes in her extremities, and she was able to perform the straightaway walk, tandem step, toe lift, heel lift, one-foot stand, and Romberg test.[6] (Tr. 261.)

Regarding the plaintiff's back pain, Dr. Keown's impression was "[k]yphoscoliotic curvature of the thoracolumbar column with chronic complaints of pain, probable degenerative disease. No objective evidence at this time for herniated disc with neuroforaminal impingement or nerve root crowding." Id. Dr. Keown opined that, in an eight-hour workday, the plaintiff could sit eight hours, walk or stand 6-8 hours, occasionally lift 35 pounds, and frequently lift 15-20 pounds. Id.

On September 13, 2010, Dr. Karla Montague-Brown, a DDS nonexamining consultative physician, completed a physical Residual Functional Capacity ("RFC") assessment. (Tr. 265-73.) Dr. Montague-Brown opined that the plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or walk about six hours in an eight-hour workday; and had no limitations pushing and/or pulling. (Tr. 266.) She also opined that the plaintiff could occasionally climb, balance, stoop, kneel, crouch, and crawl and had no manipulative, visual, communicative, or environmental limitations except for the need to avoid concentrated exposure to fumes, odors, gases, and poor ventilation due to asthma.[7] (Tr. 267-69.)

On July 19, 2011, Dr. Jain completed a lumbar spine RFC questionnaire in which he indicated that he had treated the plaintiff since April 2010 for degenerative arthritis of the spine/degenerative disc disease with scoliosis and lumbar spine convexity. (Tr. 276-79.) He indicated that her symptoms included pain in her low back, shoulder, and neck; numbness and tingling in her legs; abnormal gait; decreased reflexes in her ankles and knees; crepitus in her knees and hips; muscle spasm and weakness; weight gain; and impaired sleep. (Tr. 276-77.) He also indicated that she had a history of bipolar disorder, depression, anxiety, and panic attacks. (Tr. 279.) Dr. Jain opined that the plaintiff could lift up to ten pounds occasionally and twenty pounds rarely, sit about four hours in an eight-hour workday, stand/walk about two hours in an eight-hour workday, and walk less than one block. (Tr. 277-78.) He opined that she could occasionally twist, stoop, crouch/squat, and climb ladders and stairs; would need to take unscheduled breaks of 15-45 minutes every hour; and would likely miss more than four days of work per month. (Tr. 278-79.)

On August 1, 2011, the plaintiff was seen by Dr. Khan Li for back pain. (Tr. 280-82.) The plaintiff reported that her pain was present in her upper back and right shoulder, had gotten worse in the past year, and was accompanied by intermittent neck pain and numbness in her arms and legs. (Tr. 280.) She was taking hydrocodone-acetaminophen and Flexeril, and she reported that prednisone had "improved" her neck pain and numbness, although it is not entirely clear whether she was taking predisone at the time.[8] Id. On exam, she had normal gait and station, and, in her upper extremities, she demonstrated 5/5 muscle strength, full range of motion, and no tenderness to palpation with decreased sensation in the C6 distribution of her right upper extremity. (Tr. 280-81.) In her neck, she had intact sensation, no tenderness to palpation, and normal active range of motion, but paraspinal spasm to palpation, increased kyphosis, and pain on the right side. (Tr. 281.) In her back, she had pain across her low back, paraspinal spasm to palpation, scoliosis with a rib hump on her right side, and limited flexion and extension. Id. Dr. Li reviewed x-rays and an MRI of her thoracic and lumbar spine and determined that they showed "kyphoscoliosis[9] with exaggerated thoracic kyphosis, " "some thoracic degenerative disc disease, " and a "Cobb angle [of] approximately 20 degrees."[10] Id. Dr. Li diagnosed the plaintiff with idiopathic scoliosis and kyphoscoliosis and observed that, "in the future, she might benefit from scoliosis correction." Id. However, due to the plaintiff's pregnancy, Dr. Li did not recommend intervention at that time and advised her to follow up in one year. (Tr. 281-82.)

B. Hearing Testimony

At the hearing on October 17, 2011, the plaintiff was represented by counsel, and the plaintiff and a vocational expert ("VE"), Jo Ann Bullard, testified. (Tr. 24-49.) The plaintiff testified that she attended college and masonry apprenticeship school and that she lives with her husband and two teenage children. (Tr. 30, 33.) She said that she has a driver's license but drives "[a]s little as possible." (Tr. 31-32.) She worked as a mason, model, and wrestler. (Tr. 33, 36.)

The plaintiff testified that she was diagnosed with scoliosis as a child but did not have recommended surgery because she did not want to be "incapacitated" and was "afraid of surgery." (Tr. 37.) She explained that scoliosis has caused "degenerative discs, arthritis, [and] herniated bulging discs" in her spine. Id. She said that she has a back brace but does not always wear it and that she often has problems getting dressed because she loses her balance. (Tr. 42, 44.) She also said that she frequently trips over her right foot when she walks, which she attributed to either scoliosis or a "club foot." (Tr. 43.)

The plaintiff testified that she has panic attacks approximately once a week, which she characterized as "pretty good." (Tr. 41.) She said that in the past she took up to five Xanax pills a day for anxiety and panic attacks. Id. She explained that she stopped taking Xanax because of her pregnancy but that she still takes it "every once in a while" if she has a panic attack. Id. She said that she can only get a full night's sleep if she takes Ambien. Id. She also testified that she uses an inhaler due to problems breathing. (Tr. 40.)

The plaintiff testified that she does not have any hobbies and does not belong to any churches or clubs but that she has a neighbor who visits. (Tr. 41-42.) She said that she goes grocery shopping "[i]f [she] feel[s] up to it, " otherwise, her children or husband shop for the household. Id. She said that her family shares the housework, cooking, and laundry but that her "husband does most of it." (Tr. 42.) She said that she spends her time sitting in a recliner or lying down and that she watches television or plays computer games. (Tr. 43.)

The VE classified the plaintiff's past job as a mason apprentice as heavy and skilled, her past job as a wrestler as heavy and skilled, and her past job as a model as light and semi-skilled. (Tr. 46.) The ALJ asked whether a hypothetical person would be able to obtain work if she could perform a limited range of light work, could stand or walk up to six hours in an eight-hour workday; could do no more than occasional climbing, stooping, balancing, crouching, crawling, and kneeling; and needed to avoid concentrated exposure to dust, fumes, smoke, chemical, or noxious gases. Id. The VE testified that a person with those limitations could work as a cashier II, office helper, or marker. (Tr. 46-47.)

As a second hypothetical question, the ALJ asked whether a person with these above limitations would be able to obtain work if she were further limited to sedentary work and required a sit/stand option with brief breaks between sitting and standing. (Tr. 47.) The VE replied that a person with these limitations could work as a hand bander, table worker fabricator, or surveillance systems monitor. Id. Next, the ALJ asked whether any jobs would be available if this person were also expected to miss three or more days of work per month, and the VE replied that no jobs would be available to such a person. Id. In response to questioning by the plaintiff's attorney, the VE testified that there would be no work available to a person who could perform a limited range of light work but could sit for no more than an hour at a time or four hours total and stand or walk for no more than forty-five minutes at a time or two hours total. (Tr. 48.)


The ALJ issued an unfavorable ruling on January 26, 2012. (Tr. 9-19.) Based upon the record, the ALJ made the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2015.
2. The claimant has not engaged in substantial gainful activity since December 31, 2009, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq. ).
3. The claimant has the following severe impairments: scoliosis, degenerative disc disease, and asthma (20 CFR 404.1520(c) and 416.920(c)).
4. 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 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). She is able to lift 20 pounds occasionally and 10 pounds frequently. She can stand/walk for a total of six hours in an eight-hour workday. She can sit for a total of six hours in an eight-hour workday. She can occasionally climb, ...

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