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Fowler v. Colvin

United States District Court, S.D. Indiana, Indianapolis Division

September 29, 2014

GAE L. FOWLER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.



Plaintiff, Gae L. Fowler ("Ms. Fowler"), requests judicial review of the final decision of the Commissioner of the Social Security Administration ("the Commissioner") denying her application for Social Security Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act").[1] For the reasons set forth below, the Court REVERSES and REMANDS the Commissioner's decision for additional proceedings.


A. Procedural History

On April 7, 2009, Ms. Fowler filed an application for DIB, alleging a disability onset date of April 30, 2003. Ms. Fowler's claim was denied initially on September 8, 2009, and upon reconsideration on November 19, 2009. Thereafter, Ms. Fowler filed a written request for a hearing, and a hearing was held on May 25, 2011, before Administrative Law Judge John H. Metz ("the ALJ"). Ms. Fowler was represented by attorney Otis Darby at the hearing. Also appearing at the hearing were medical expert Dr. Lee Fischer, M.D. ("Dr. Fischer"), and vocational expert Constance R. Brown ("the VE"). On June 10, 2011, the ALJ issued a decision denying Ms. Fowler benefits. On May 11, 2013, the Appeals Council denied Ms. Fowler's request for review of the ALJ's decision, thus making it the final decision of the Commissioner for purposes of judicial review. Ms. Fowler filed this civil action, pursuant to 42 U.S.C. § 405(g), for review of the ALJ's decision.

B. Factual Background

Ms. Fowler was 42 years old at the time of her alleged onset date of April 30, 2003. She has a bachelor's degree and has completed part of her master's degree, and has past relevant work as a financial control officer.[2] Ms. Fowler has been receiving long-term disability benefits through her former employer since April 30, 2003. Upon her application for social security benefits, and on subsequent appeals, Ms. Fowler alleged problems with facial pain, fibromyalgia, hypothyroidism, and degenerative disc disease of the lumbar spine. However, her appeal is primarily based upon the ALJ's conclusions as they relate to her fibromyalgia.

On July 10, 2003, Ms. Fowler was seen for an initial rheumatology evaluation by Dr. Denise K. Thornberry, M.D. ("Dr. Thornberry") due to left sided facial pain, and aching in her joints involving her back, feet, ankles, shoulders, arms and hands which was becoming progressively worse with time. Upon examination, Dr. Thornberry noted give way weakness on muscle testing proximally, and atrophy between the first and second fingers on the left hand with weakness of thumb apposition. Dr. Thornberry also noted that Ms. Fowler had tenderness of 18 out of 18 trigger points, and had evidence on physical examination of fibromyalgia. On August 5, 2003, Ms. Fowler followed up with Dr. Sherry Reid, M.D. for a neurological evaluation for her fibromyalgia, vertigo, and limb numbness.

On January 12, 2004, Dr. Lori L. Fuqua, M.D. ("Dr. Fuqua") stated in a letter addressed to Ms. Fowler's long-term disability insurance provider, Mutual of Omaha, that Ms. Fowler suffered from a mixed connective tissue disease, as well as fibromyalgia and recurrent parotiditis. Dr. Fuqua noted that Ms. Fowler had chronic pain as a result of these conditions, which required high doses of narcotics for pain control. Dr. Fuqua also stated that she had referred Ms. Fowler to "many specialists and they all concur with these diagnoses." Filing No. 12-18, at ECF p. 39. It was Dr. Fuqua's opinion that Ms. Fowler should not operate a motor vehicle or machinery, has difficulty with day-to-day activities, and is unable to maintain any type of full time or scheduled employment.

On May 12, 2004, Ms. Fowler visited rheumatologist Dr. Stephen R. Pfeifer, M.D. ("Dr. Pfeifer") for evaluation of her fibromyalgia. He noted that she had chronic daily fibromyalgia pain diffusely throughout her muscles, and was seeing a chronic pain doctor. Ms. Fowler told Dr. Pfeifer that she was on disability but wanted to get back to work in her prior job as a financial control officer, so she was looking for new ideas for treatment. He noted that, on an average day, her pain levels were 9 out of 10, and her fatigue was 5 out of 10. Upon examination, Ms. Fowler had exaggerated pain response to fibromyalgia throughout the usual trigger points; however, there were no notes indicating malingering.[3] Dr. Pfeifer changed her medications to improve her energy levels, but said he did not typically treat fibromyalgia with narcotics and she would have to continue seeing her pain specialist to obtain narcotics at such a high strength.

On August 1, 2005, Ms. Fowler's pain management doctor, Dr. Joel Hochman, M.D. ("Dr. Hochman"), completed an assessment for Mutual of Omaha in which he diagnosed Ms. Fowler with fibromyalgia based upon the objective findings which meet the American College of Rheumatology criteria, including trigger point tenderness. He noted that she can sit, stand and walk about one hour each in an eight hour workday, is restricted to lifting or carrying less than 10 pounds, limited in her ability to bend and reach, and has secondary depression due to her pain. Dr. Hochman gave Ms. Fowler a global assessment of functioning score of 45, indicating serious impairment. Dr. Hochman completed additional forms for Mutual of Omaha on April 10, 2006, February 8, 2007, August 23, 2007, and April 1, 2008, in which he consistently noted a diagnosis of fibromyalgia based upon objective findings of trigger point tenderness and decreased range of motion. He also noted that Ms. Fowler had attempted several other methods of treatment, including ESIS, physical therapy and acupuncture. Dr. Hochman's prognosis for Ms. Fowler was guarded. With regard to her functional abilities in each of these later assessments, Dr. Hochman noted that Ms. Fowler could only sit for two hours, stand for 30 minutes maximum, and walk for 15 minutes at most in an eight hour workday, and has restrictions in lifting, carrying, using hands for repetitive actions, using feet for repetitive movements, bending, squatting, crawling, climbing, and reaching.


Disability is defined as the "inability 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). In order to be found disabled, a claimant must demonstrate that her physical or mental limitations prevent her from doing not only her previous work, but any other kind of gainful employment which exists in the national economy, considering her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).

In determining whether a claimant is disabled, the Commissioner employs a five-step sequential analysis. At step one, if the claimant is engaged in substantial gainful activity, she is not disabled, despite her medical condition and other factors. 20 C.F.R. § 416.920(a)(4)(i). At step two, if the claimant does not have a "severe" impairment (i.e., one that significantly limits her ability to perform basic work activities) that meets the durational requirement, she is not disabled. 20 C.F.R. § 416.920(a)(4)(ii). At step three, the Commissioner determines whether the claimant's impairment or combination of impairments meets or medically equals any impairment that appears in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, and whether the impairment meets the twelve month duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 416.920(a)(4)(iii). In order to determine steps four and five, the ALJ must determine the claimant's Residual Functional Capacity, which is the "maximum that a claimant can still do despite [her] mental and physical limitations." Craft v. Astrue, 539 F.3d 668, 675-76 (7th Cir. 2008) (citing 20 ...

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