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Dawson v. Berryhill

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

March 31, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.



         Plaintiff Carolyn Mary Dawson (“Dawson”) 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”). For the following reasons, the Court REMANDS the decision of the Commissioner for further consideration.

         I. BACKGROUND

         A. Procedural History

         On October 9, 2012, Dawson filed an application for DIB, alleging a disability onset date of October 8, 2012, due to fibromyalgia, bone spurs, neuropathy, arthritis, carpal tunnel syndrome, bursitis, chronic fatigue, migraines, hypertension, and back and neck impairments. Her application was initially denied on December 21, 2012, and again on reconsideration on February 27, 2013. Dawson filed a written request for a hearing on April 1, 2013. On January 15, 2014, a hearing was held before Administrative Law Judge Mark C. Ziercher (the “ALJ”). Dawson was present and represented by counsel. Ray Burger, an impartial vocational expert, appeared and testified at the hearing. On March 26, 2014, the ALJ denied Dawson's application for DIB. Following this decision, Dawson requested review by the Appeals Council on April 22, 2014. On April 30, 2015, the Appeals Council denied Dawson's request for review of the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. On June 30, 2015, Dawson filed this action for judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         B. Factual Background

         At the time of her alleged disability onset date, Dawson was 57 years old, and she was 58 years old at the time of the ALJ's decision. Dawson is currently 61 years old. Dawson completed her high school education and took some college courses. Prior to the onset of her alleged disability, Dawson had an employment history of working as a sales clerk, a sales representative, and a plasma donor processor. She continued working as a plasma donor processor after her alleged disability onset date of October 8, 2012, into the first quarter of 2013, but this work did not rise to the level of substantial gainful activity.

         The Court focuses on Dawson's impairment of fibromyalgia because this impairment is the primary focus of Dawson's request for reversal of the ALJ's decision and remand for further consideration. Dawson was diagnosed with fibromyalgia in 1986, and she has had periods of time where she received treatment for the condition. She has occasionally received steroid shots and has often taken various medications to address her fibromyalgia.

         Dawson has been regularly seeing her primary care physician, family medicine specialist Mark A. Litz, M.D. (“Dr. Litz”), for a number of years. Dr. Litz has treated Dawson for numerous impairments and illnesses, including fibromyalgia. Dr. Litz has treated Dawson for widespread pain throughout the fibromyalgia tender points, intermittent stress headaches, TMJ-related pain, gastrointestinal issues, and other ailments. Dr. Litz's diagnostic impression consistently has included fibromyalgia throughout his treatment notes, and his review of systems consistently has referenced widespread pain, diffuse tenderness in trigger points, fatigue, weakness, malaise, and decreased activity tolerance. For example, at a December 2011appointment, Dr. Litz noted in the medical record that Dawson had widespread pain, fatigue, moderate pain in the fibromyalgia tender points, and that trigger point tenderness was diffusely presenting (Filing No. 13-1 at 101). Similar notes regarding Dawson's fibromyalgia were included in Dr. Litz's treatment records when he saw Dawson in July 2012 (id. at 88), September 2012 (id. at 84), and February 2013 (id. at 134). In 2012, Dawson received treatment from a pain specialist, Miriam Ibrahim, M.D. (“Dr. Ibrahim”) (Filing No. 13-1 at 50-59). Each of Dr. Ibrahim's treatment records noted Dawson's diagnosis of fibromyalgia. Dawson met with Dr. Ibrahim to address her widespread pain on January 16, 2012. They discussed Dawson's fibromyalgia, and Dawson explained that she had experienced back pain, so she had back surgery in August 2010. Dawson explained that it took her nine months to recover from the back surgery, and once the back pain from the surgery started getting better, she started having pain and achiness all over her body. This widespread pain occurred daily and was a 7 on a scale of 1 to 10. The pain was both above and below the waist and on both sides of her body. Dawson also experienced fatigue and tiredness (Filing No. 13-1 at 54). After conducting a physical examination, Dr. Ibrahim noted, “[e]xamination of the tender points of fibromyalgia revealed the patient to have 14 of the 18 tender points.” (Filing No. 13-1 at 55.) After Dawson's office visits on February 9, 2012 and March 21, 2012, Dr. Ibrahim continued to note her fibromyalgia as an ongoing diagnosis.

         In April 2013, after Dawson had filed her application for DIB, she was seen by a rheumatologist, Tarek Kteleh, M.D. (“Dr. Kteleh”) (Filing No. 13-1 at 145-46). Dr. Kteleh noted that Dawson suffered diffuse pain and achiness in her muscles and joints, especially in her shoulders, neck, back, and knees. Dr. Kteleh recorded his medical impression, “Fibromyalgia: [Dawson] does have diffuse pain and positive trigger points for fibromyalgia, ” and “had negative RF, ANA and ESR” testing to rule out other possible causes for her fibromyalgia symptoms (Filing No. 13-1 at 146). Dr. Kteleh prescribed fibromyalgia medication to Dawson for her treatment and recommended exercise and warm water therapy.

         As part of the disability review process, a disability doctor, Rey Arenas, M.D. (“Dr. Arenas”), conducted a physical consultative examination of Dawson in December 2012 (Filing No. 13-1 at 116-22). Dr. Arenas noted Dawson's diagnosis of fibromyalgia, and performed a physical examination. Dr. Arenas' examination of Dawson revealed diffusely limited range of motion in the cervical and lumbar spine, shoulders, knees, and hips. He observed Dawson's pain in all extremities upon movement and a sensitivity to touch. Dawson had a stooped posture, unsteady gait, and diminished speed and instability. She was unsteady on standing and walking. She needed assistance with getting on and off the examination table. She also needed assistance from Dr. Arenas and a chair when walking to the examination table. She had obvious signs of fatigue and pain on examination. Dawson was unable to walk on her heels or toes or tandem walk or squat. She had abnormal motion on walking and turning her head due to pain. She had abnormal straight leg raising results in both the sitting and supine positions. She also had weak muscle strength and tone as well as pain all over, especially on her thighs. Her strength was limited to four out of five in all extremities. Id.

         There is additional evidence throughout the record that indicates Dawson experienced neuropathy, chronic fatigue, carpel tunnel syndrome, and degenerative disc disease, and she sought various treatments for these impairments.


         Under the Act, a claimant may be entitled to DIB only after he establishes that he is disabled. 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 his physical or mental limitations prevent him from doing not only his previous work but any ...

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