Opinion
CIVIL ACTION 15-0327-KD-M
01-27-2016
KIMBERLY E. SWINDOLL, Plaintiff, v. 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.
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 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 non-examining 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.
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.
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 Lortab and attempted suicide ten months earlier; she had been clean for a year but had prescriptions for Cymbalta, Ultram 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:
Lortab is a semisynthetic narcotic analgesic used for "the relief of moderate to moderately severe pain." Physician's Desk Reference 2926-27 (52nd ed. 1998).
Cymbalta is used in the treatment of major depressive disorder. Physician's Desk Reference 1791-93 (62nd ed. 2008).
Ultram is an analgesic "indicated for the management of moderate to moderately severe pain." Physician's Desk Reference 2218 (54th ed. 2000).
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.(Tr. 323).
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.
Records show regular treatment at Mostellar Medical Center, beginning June 16, 2008 and continuing through October 27, 2010, for diabetes, gastroenteritis, seizures, pneumonia, chronic pain, a staph infection, anxiety, depression, high blood pressure, and respiratory/sinus problems for which she was treated with Tramadol, Darvocet, Ultram, BuSpar, Zoloft, and Phenergan (Tr. 324-89). Notations were made several times that Plaintiff had an addiction problem.
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).
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).
BuSpar is used to treat anxiety and irritability. See http://www.drugs.com/buspar.html
Zoloft is "indicated for the treatment of depression." Physician's Desk Reference 2229-34 (52nd ed. 1998).
Phenergan is used as a sedative, sleep aid, or to treat nausea, vomiting, or pain. http://www.drugs.com/phenergan.html
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, Tramadol, Oxycodone, Ultram, and exercise (Tr. 634-51).
Trazodone is used for the treatment of depression. Physician's Desk Reference 518 (52nd ed. 1998).
Oxycodone is a pure agonist opioid whose principal therapeutic action is analgesia. Physician's Desk Reference 2680-81 (62nd ed. 2008).
On February 4, 2011, Swindoll was examined at Franklin PHC for itchy bumps all over her body for the previous two months 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, 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).
Pristiq is used in treating depression and anxiety. http://www.webmd.com/drugs/2/drug-150251/pristiq-oral/details
On April 26, at the request of the SSA, Dr. Jonathan C. Campbell, Family Practitioner, examined Plaintiff whose 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 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 Zanaflex (Tr. 469-71). A week later, Swindoll was seen in follow-up pursuant to a test demonstrating an increased triglyceride level (Tr. 464-68). Ambien was prescribed for insomnia.
Zanaflax "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).
Ambien is a class four narcotic used for the short-term treatment of insomnia. Physician's Desk Reference 2799 (62nd ed. 2008).
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 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-to-twelve 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 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 full-time 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 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 work-like 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 co-workers 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 post-treatment for pregnancy with delivery on December 12 without complication (Tr. 652-729; see also Tr. 730-49).
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 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); see also 20 C.F.R. § 404.1527 (2015).
The 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.
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 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
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). 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.
Psychologist 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. --------
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. 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 non-disability 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 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 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