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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

KIMBERLY E. SWINDOLL, :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION 15-0327-KD-M

 :

CAROLYN W. COLVIN, :

Commissioner of Social Security, :

 :

Defendant. :

REPORT AND RECOMMENDATION

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3), 

Plaintiff seeks judicial review of an adverse social security 

ruling which denied claims for disability insurance benefits and 

Supplemental Security Income (hereinafter SSI). The action was 

referred for report and recommendation pursuant to 28 U.S.C. § 

636(b)(1)(B), Fed.R.Civ.P. 72, and S.D.Ala. Gen.L.R. 72. Oral 

argument was heard on January 25, 2016. Upon consideration of 

the administrative record, the memoranda of the parties, and 

oral argument, it is recommended that the decision of the 

Commissioner be affirmed, that this action be dismissed, and 

that judgment be entered in favor of Defendant Carolyn W. Colvin

and against Plaintiff Kimberly E. Swindoll.

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This Court is not free to reweigh the evidence or 

substitute its judgment for that of the Secretary of Health and 

Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 

(11th Cir. 1983), which must be supported by substantial 

evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The 

substantial evidence test requires "that the decision under 

review be supported by evidence sufficient to justify a 

reasoning mind in accepting it; it is more than a scintilla, but 

less than a preponderance." Brady v. Heckler, 724 F.2d 914, 918 

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 

(D. Md. 1982).

At the time of the administrative hearing, Plaintiff was 

thirty-three years old, had completed a high school education 

(Tr. 50), and had previous work experience as a dental assistant 

(Tr. 52). In claiming benefits, Plaintiff alleges disability 

due to depression, anxiety, low back pain, diabetes mellitus, 

seizure disorder, obesity, and hypertension (Doc. 9 Fact Sheet).

The Plaintiff filed applications for disability insurance 

and SSI on June 20, 2012, alleging a disability onset date of 

December 31, 2009 (Tr. 24, 182-93). Benefits were denied 

following a hearing by an Administrative Law Judge (ALJ) who 

determined that although she could not return to her previous 

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work, there were specific light work jobs Swindoll could perform

(Tr. 24-36). Plaintiff requested review of the hearing decision 

(Tr. 12-13) by the Appeals Council, but it was denied (Tr. 1-5).

Plaintiff claims that the opinion of the ALJ is not 

supported by substantial evidence. Specifically, Swindoll

alleges that: (1) The ALJ did not properly assign controlling 

weight to her treating physician’s conclusions; (2) the ALJ 

erred in failing to assign weight to three consultative 

psychologists; and (3) the ALJ improperly gave weight to a nonexamining physician’s conclusions over those of her treating 

physician and three consultative psychologists (Doc. 9). 

Defendant has responded to—and denies—these claims (Doc. 10). 

The relevant evidence of record follows.1

On October 7, 2008, Psychologist John W. Davis examined 

Swindoll at the request of the Social Security Administration 

(hereinafter SSA); he noted nothing unusual in her gait, 

posture, mannerisms, or hygiene (Tr. 318-23). He judged her a 

reliable historian. Plaintiff had had a problem with Lortab2 and 

attempted suicide ten months earlier; she had been clean for a 

 1

The Court will not summarize evidence that pre-dates the alleged 

disability date of December 31, 2009 or does not relate to the claims 

raised in this action.

2

Lortab is a semisynthetic narcotic analgesic used for “the 

relief of moderate to moderately severe pain.” Physician's Desk 

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year but had prescriptions for Cymbalta3, Ultram4 and to prevent 

seizures. Swindoll was oriented in three spheres and had no 

loose associations, tangential or circumstantial thinking, or 

confusion; judgment and insight were good. Though Swindoll had 

completed high school in a regular curriculum, Davis estimated 

her intellectual level as low average. The Psychologist’s 

impression was Depression, NOS, and Seizures; his final thoughts 

follow:

This claimant has the ability to do 

simple, routine, repetitive type tasks. She 

can get along with others. She can manage 

any benefits that may be forthcoming.

The mental capacity of this claimant 

should be considered as an add-on factor but 

in and of itself is not disabling. 

Decisions about her disability need to be 

based on the general medical condition of 

this claimant.

(Tr. 323).

Records show regular treatment at Mostellar Medical Center, 

beginning June 16, 2008 and continuing through October 27, 2010,

for diabetes, gastroenteritis, seizures, pneumonia, chronic 

 Reference 2926-27 (52nd ed. 1998).

3

Cymbalta is used in the treatment of major depressive disorder. 

Physician's Desk Reference 1791-93 (62nd ed. 2008).

4

Ultram is an analgesic “indicated for the management of moderate 

to moderately severe pain.” Physician's Desk Reference 2218 (54th ed. 

2000). 

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pain, a staph infection, anxiety, depression, high blood 

pressure, and respiratory/sinus problems for which she was 

treated with Tramadol,5 Darvocet,6 Ultram, BuSpar,7 Zoloft,8 and 

Phenergan9 (Tr. 324-89). Notations were made several times that 

Plaintiff had an addiction problem. 

Other records show that Franklin Primary Health Center 

(hereinafter Franklin PHC) began treating Swindoll, as early as 

June 5, 2009, for hypertension, type two diabetes mellitus, low 

back pain, a seizure disorder, anxiety, depression, and obesity 

for which she was prescribed Zoloft, Trazadone,10 Tramadol, 

Oxycodone,11 Ultram, and exercise (Tr. 634-51). 

On February 4, 2011, Swindoll was examined at Franklin PHC 

for itchy bumps all over her body for the previous two months 

 5

Tramadol “is indicated for the management of moderate to moderately 

severe chronic pain in adults who require around-the-clock treatment of 

their pain for an extended period of time.” Physician's Desk Reference 2520 

(66th ed. 2012).

6

Propoxyphene napsylate, more commonly known as Darvocet, is a 

class four narcotic used “for the relief of mild to moderate pain” and 

commonly causes dizziness and sedation. Physician's Desk Reference

1443-44 (52nd ed. 1998). 

7

BuSpar is used to treat anxiety and irritability. See

http://www.drugs.com/buspar.html

8

Zoloft is “indicated for the treatment of depression.” 

Physician's Desk Reference 2229-34 (52nd ed. 1998). 9

Phenergan is used as a sedative, sleep aid, or to treat nausea,

vomiting, or pain. http://www.drugs.com/phenergan.html

10Trazodone is used for the treatment of depression. Physician's 

Desk Reference 518 (52nd ed. 1998).

11Oxycodone is a pure agonist opioid whose principal therapeutic 

action is analgesia. Physician's Desk Reference 2680-81 (62nd ed. 

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and low back pain, rated as seven on a ten-point scale; she had 

not taken her blood pressure medications in two weeks. (Tr. 

503-04, 632-33). Plaintiff was treated for Scabies and 

prescribed Tramadol, Oxycodone, and Zoloft. On March 4, 2011, 

Swindoll was encouraged to exercise and diet (Tr. 501-02, 630-

31).

On April 4, at the request of the SSA, Psychologist Lucile 

T. Williams examined Swindoll who complained of “seizures, neck 

and back problems, depression, and anxiety attacks;” her 

medications included Zoloft, Trazadone, Pristiq,12 and Oxycodone 

(Tr. 406; see generally Tr. 406-07). Affect was tearful and her 

mood was mildly depressed. Thought processes were grossly 

intact with no confusion; insight, understanding of self, and 

judgment were poor. The Psychologist estimated Swindoll’s 

intelligence was average; her impression was Depressive 

Disorder, NOS. Williams’s prognosis was that “within the next 

six to twelve months [Swindoll] will have a favorable response 

to treatment including psychotherapy” (Tr. 407).

On April 26, at the request of the SSA, Dr. Jonathan C. 

Campbell, Family Practitioner, examined Plaintiff whose 

 2008). 

12Pristiq is used in treating depression and anxiety. 

http://www.webmd.com/drugs/2/drug-150251/pristiq-oral/details

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complaints included chronic, radiating, low back pain, 

controlled seizure disorder, and major depression; Swindoll

walked without a cane or difficulty (Tr. 409-13). Range of 

motion (hereinafter ROM) was normal in her neck and extremities; 

there were mild lumbar spine limitations, but no tenderness. 

There were no motor or sensory deficits; grip strength was 5/5 

bilaterally. Campbell stated as follows:

From a physical standpoint, the 

claimant’s ability to do work related 

activities such as sitting, standing, 

walking, lifting, carrying and handling 

objects, hearing, speaking and traveling 

appears to be adequate for normal duty. 

However, from a mental standpoint the 

patient may not be capable of this and my 

need further evaluation by a mental health 

specialist.

(Tr. 411).

On May 5, Franklin PHC records demonstrate Plaintiff 

complaining of low back pain at a level eight; prescriptions 

were refilled (Tr. 499-500, 628-29). Over the course of the 

next year, Swindoll was examined four times, routinely 

complaining of low back pain; no changes in treatment were noted 

(Tr. 490-97, 620-27). 

On May 10, Plaintiff went to the Providence Hospital 

Emergency Room for excruciating back pain; she was admitted for 

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four nights and treated with IV fluids for hypotensive renal 

failure (Tr. 415-55). Gallstones were discovered, but surgery 

was unnecessary; Swindoll’s thyroid studies were abnormal, but 

“[o]verall, her hospitalization course was relatively 

uneventful” (Tr. 426). Testing showed mild disc space narrowing 

at L5-S1 and minimal anterior osteophyte formation at T11-12 and 

T9-10. 

On July 20, 2012, Plaintiff was examined at the Mobile 

County Department of Health for elbow joint pain for which she 

was prescribed Zanaflex13 (Tr. 469-71). A week later, Swindoll 

was seen in follow-up pursuant to a test demonstrating an 

increased triglyceride level (Tr. 464-68). Ambien14 was 

prescribed for insomnia. 

On August 10, Dr. Michael Sforzini, at Franklin PHC, 

examined Swindoll for middle and lower back and neck pain; he 

noted normal ROM, muscle strength, and stability in all

extremities with no pain on inspection (Tr. 485-89, 616-19). 

On October 8, at the request of the SSA, Jack C. Carney, 

Psychologist, examined Swindoll who complained of anxiety and 

 13Zanaflax “is a short-acting drug for the acute and intermittent 

management of increased muscle tone associated with spasticity.” 

Physician's Desk Reference 3204 (52nd ed. 1998). 

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depression; she was oriented in three spheres with no signs of 

confusion, loose associations, tangential, or circumstantial 

thinking (Tr. 506-09). Plaintiff had poor judgment, limited 

insight and was estimated to be functioning in the low average 

range of intelligence. Carney diagnosed her to have Major 

Depression and Anxiety Disorder, NOS. The Psychologist found 

that Plaintiff was capable of completing all personal activities 

of daily living independently; with regard to her ability to 

maintain social functioning as well as concentration, 

persistence, or pace, Carney only reported Swindoll’s own 

statements. The Psychologist’s prognosis was that Plaintiff 

would have a favorable response to treatment within six-totwelve months.

On October 26, 2012, Dr. Harold R. Veits, a Non-Examining 

Physician who reviewed the evidence available at that time, 

determined that Plaintiff did not meet the requirements for the 

Listings concerning Affective Disorders, Anxiety-Related 

Disorders, Personality Disorders, or Substance Addiction 

Disorders (Tr. 79-95). Veits further concluded that Swindoll 

had mild restriction of activities of daily living, moderate 

 14Ambien is a class four narcotic used for the short-term 

treatment of insomnia. Physician's Desk Reference 2799 (62nd ed. 

2008).

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difficulties in maintaining social functioning, moderate 

difficulties in maintaining concentration, persistence or pace, 

and had had only one or two episodes of decompensation of 

extended duration. Veits indicated that Plaintiff’s statements 

regarding her impairments were only partially credible. 

On November 12, 2012, Dr. Sforzini examined Plaintiff for 

hypertension and diabetes; on exam, he noted lumbar muscle spasm 

and pain, but no joint pain or swelling (Tr. 612-15). 

On January 3, 2013, Dr. Sforzini noted that Swindoll was 

being treated for the following diagnoses: (1) Diabetes 

Mellitus Type 2, Uncomplicated; (2) Hypertension, Benign; (3) 

Other and unspecified hyperlipidemia; (4) Epilepsy, unspecified, 

without mention of intracta; (5) Backache; and (6) Anxiety; all 

were described as chronic (Tr. 515-17, 609-11). The Doctor 

noted normal ROM, muscle strength, and stability in all 

extremities with no pain on inspection; Sforzini ordered a 

cholesterol test. The Doctor completed a Questionnaire 

indicating that Swindoll had Diabetes and she could work fulltime with only slight limitations (Tr. 511-12). On the same 

day, the Doctor completed a Mental Residual Functional Capacity 

Questionnaire indicating that Plaintiff had marked restrictions 

in her daily living activities, an extreme degree of difficulty 

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in maintaining social functioning, constant deficiencies of 

concentration, persistence or pace resulting in failure to 

complete tasks in a timely and appropriate manner, and would 

experience four or more episodes of decompensation in a worklike setting that would cause her to withdraw or experience 

exacerbation of her symptoms for at least two weeks (Tr. 513-

14). Sforzini further indicated that Plaintiff would be 

markedly limited in her ability to respond appropriately to coworkers and customary work pressures; she would be extremely 

limited in her ability to perform repetitive tasks and complete 

activities in a normal workday or workweek. The Doctor stated 

that Swindoll’s medications cause sedation, low blood sugar, and 

decreased concentration; he thought she was disabled and had 

been since 2007.

On March 20, 2013, Dr. Sforzini noted neck and back pain; 

Plaintiff had lost weight (Tr. 605-08). 

On September 23, Swindoll was examined by Krishna K. Pasala 

at Franklin PHC for hypertension and diabetes; her pain was at 

level four (Tr. 600-04).

Records from USA OB/GYN Clinic demonstrate pre- and posttreatment for pregnancy with delivery on December 12 without 

complication (Tr. 652-729; see also Tr. 730-49). 

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On January 10, 2014, Swindoll was examined at Stanton Road 

Clinic; she complained of severe back pain (eight-to-ten in 

severity) for which she sought an increased dosage of Oxycodone 

(Tr. 750-55). The examination was relatively normal; it was 

noted that Plaintiff was suffering post-partum depression and 

her Zoloft prescription dosage had been doubled. An oxycodone

prescription was made for the past dosage amount, but Swindoll 

first had to sign a contract stating that she would not receive 

pain medication from any other doctor. 

The ALJ, in reaching her determination, held that Plaintiff 

could perform a limited range of light work, identifying 

specific jobs existing in the national economy (Tr. 24-36). In 

reaching this conclusion, the ALJ gave great weight to Veits’s 

psychiatric review technique assessment (Tr. 29, 33), some 

weight to Dr. Campbell’s conclusions (Tr. 33), and little weight 

to the conclusions of Dr. Sforzini (Tr. 29, 34); the ALJ also 

discounted Swindoll’s statements regarding her impairments as 

not fully credible (Tr. 33), a finding gone unchallenged in this 

action (see Doc. 9). This concludes the Court’s summary of the 

evidence.

In bringing this action, Swindoll first claims that the ALJ 

did not properly consider—and giving controlling weight—to the 

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conclusions of her treating physician, Dr. Sforzini (Doc. 9, pp. 

5-9). It should be noted that "although the opinion of an 

examining physician is generally entitled to more weight than 

the opinion of a non-examining physician, the ALJ is free to 

reject the opinion of any physician when the evidence supports a 

contrary conclusion." Oldham v. Schweiker, 660 F.2d 1078, 1084 

(5th Cir. 1981);15 see also 20 C.F.R. § 404.1527 (2015). 

The ALJ rejected Dr. Sforzini’s findings, in his 

questionnaire, that Swindoll had marked restrictions in 

activities of daily living, extreme difficulties in social 

functioning, extreme difficulties with regard to concentration, 

persistence, or pace; and experienced four or more episodes of 

decompensation, each of extended duration (Tr. 29). In reaching 

this conclusion, the ALJ noted that Dr. Campbell’s assessment of 

Plaintiff’s physical abilities was more consistent with the

record as a whole than the conclusions of Dr. Sforzini;

likewise, the ALJ found that Dr. Veits’s conclusions regarding 

Swindoll’s mental abilities was more consistent with the record 

than those of Dr. Sforzini (Tr. 34). In reaching that 

conclusion, the ALJ cited multiple other exhibits (Tr. 34). The 

 15The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 

1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions 

of the former Fifth Circuit rendered prior to October 1, 1981.

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Court notes that Sforzini’s own medical records do not support 

the extreme limitations he suggested; furthermore, there is no 

basis of support for the Doctor’s conclusion that Plaintiff had 

been disabled since 2007, especially in light of Swindoll’s 

asserted disability onset date of December 31, 2009. The Court 

finds substantial support for the ALJ’s determination that 

Sforzini’s conclusions were to be given little weight.

Plaintiff next claims that the ALJ erred in failing to 

state what weight she gave to three consultative psychologists 

(Davis, Williams, and Carney) (Doc. 9, pp. 4-5). The Court 

notes that the ALJ is required to "state specifically the weight 

accorded to each item of evidence and why he reached that 

decision." Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 

1981). Furthermore, social security regulations provide the 

following instruction:

It is not sufficient for the 

adjudicator to make a single, conclusory 

statement that “the individual's allegations 

have been considered” or that “the 

allegations are (or are not) credible.” It 

is also not enough for the adjudicator 

simply to recite the factors that are 

described in the regulations for evaluating 

symptoms. The determination or decision 

must contain specific reasons for the 

finding on credibility, supported by the 

evidence in the case record, and must be 

sufficiently specific to make clear to the 

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individual and to any subsequent reviewers 

the weight the adjudicator gave to the 

individual's statements and the reasons for 

that weight.

SSR 96-7p (Policy Interpretation Ruling Titles II and XVI: 

Evaluation of Symptoms in Disability Claims: Assessing the 

Credibility of an Individual’s Statements).

The Court notes that although the ALJ did not cite the 

Psychologists by name, her determination repeatedly references 

them by exhibit number (see Tr. 27, 28, 29, 31, 32, 33, 34).16 

The Court further notes that although Swindoll correctly asserts 

that the ALJ did not state what weight she gave those opinions, 

it is evident that she relied on them to form the basis of her 

determination that Plaintiff was not disabled. Careful review 

of Williams’s and Carney’s records fails to sway this Court to 

believe that they were not properly considered. Swindoll’s 

claim otherwise is without merit.

Finally, Plaintiff asserts that the ALJ improperly gave 

weight to a Non-Examining Physician’s conclusions over those of 

her treating physician and three consultative psychologists. 

 16Psychologist Williams’s and Carney’s records are referenced as 

Exhibits B7F and B13F respectively. The Court further notes that 

although there is no apparent reference to Dr. Davis or his 

conclusions, his evaluation of October 7, 2008 pre-dates Swindoll’s 

asserted date of disability by more than a year; failure to reference 

Davis’s records is, at most, harmless error.

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Swindoll refers to Dr. Veits as the Non-Examining Doctor (Doc. 

9, pp. 2-4). Swindoll relies on Coleman v. Barnhart, 264 

F.Supp.2d 1007, 1010-11 (S.D. Ala. 2003), rendered a dozen years 

ago by this Court, holding that an ALJ’s determination of nondisability was not supported by the evidence unless there was a 

physical capacities evaluation rendered by a treating or 

examining physician. 

However, Coleman was not generally accepted as the law of 

this Circuit. In Packer v. Astrue, 2013 WL 593497, *3 (S.D. 

Ala. February 14, 2013), U.S. District Court Judge Granade noted 

that “[s]ince Coleman, numerous courts have upheld ALJs’ 

[residual functional capacity] determinations notwithstanding 

the absence of an assessment performed by an examining or 

treating physician.” Id. Plaintiff’s reliance on Coleman is 

misplaced here as well.

Dr. Sforzini was the only examining source in this record 

providing an opinion regarding Swindoll’s mental abilities 

and/or limitations. Those limitations bore no resemblance to 

any other evidence in the record, including his own treatment 

notes. Not even the records of the three consultative 

psychologists provided any support for such extreme limitations. 

Dr. Veits’s conclusions more closely resembled the reports of 

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the three consultative Psychologists, even though they did not 

provide mental functional capacity evaluations. Plaintiff’s 

claim that the ALJ improperly relied on the Non-Examiner’s 

conclusions is without merit.

Swindoll raised three claims in bringing this action. All 

are without merit. Upon consideration of the entire record, the 

Court finds "such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion." Perales, 402 U.S. 

at 401. Therefore, it is recommended that the Secretary's 

decision be affirmed, see Fortenberry v. Harris, 612 F.2d 947, 

950 (5th Cir. 1980), that this action be dismissed, and that 

judgment be entered in favor of Defendant Carolyn W. Colvin and 

against Plaintiff Kimberly E. Swindoll.

NOTICE OF RIGHT TO FILE OBJECTIONS 

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. 

§ 636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 7(c). The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] party 

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failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. In order to be specific, an objection must 

identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

DONE this 27th day of January, 2016.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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