DAWSON v. COLVIN
ENTRY ON JUDICIAL REVIEW: For the reasons set forth above, the final decision of the Commissioner is REMANDED for further proceedings consistent with this Entry as authorized by Sentence Four of 42 U.S.C. § 405(g). (See Entry.) Signed by Judge Tanya Walton Pratt on 3/31/2017.(JLS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
CAROLYN MARY DAWSON,
NANCY A. BERRYHILL, Acting Commissioner )
of the Social Security Administration,
Case No. 1:15-cv-01028-TWP-MPB
ENTRY ON JUDICIAL REVIEW
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.
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
Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Commissioner Carolyn W. Colvin as
the defendant in this suit.
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).
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.
DISABILITY AND STANDARD OF REVIEW
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 other kind of gainful employment which exists in the national economy, considering
his age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
The Commissioner employs a five-step sequential analysis to determine whether a claimant
is disabled. At step one, if the claimant is engaged in substantial gainful activity, he is not disabled
despite his 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 that meets the durational requirement, he is not
disabled. 20 C.F.R. § 416.920(a)(4)(ii). A severe impairment is one that “significantly limits [a
claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). 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).
If the claimant’s impairments do not meet or medically equal one of the impairments on
the Listing of Impairments, then his residual functional capacity will be assessed and used for the
fourth and fifth steps. Residual functional capacity (“RFC”) is the “maximum that a claimant can
still do despite his mental and physical limitations.” Craft v. Astrue, 539 F.3d 668, 675–76 (7th
Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(1); SSR 96-8p). At step four, if the claimant is able to
perform his past relevant work, he is not disabled. 20 C.F.R. § 416.920(a)(4)(iv). At the fifth and
final step, it must be determined whether the claimant can perform any other work in the relevant
economy, given his RFC and considering his age, education, and past work experience. 20 C.F.R.
§ 404.1520(a)(4)(v). The claimant is not disabled if he can perform any other work in the relevant
The combined effect of all the impairments of the claimant shall be considered throughout
the disability determination process. 42 U.S.C. § 423(d)(2)(B). The burden of proof is on the
claimant for the first four steps; it then shifts to the Commissioner for the fifth step. Young v. Sec’y
of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992).
Section 405(g) of the Act gives the court “power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). I n
reviewing the ALJ’s decision, this Court must uphold the ALJ’s findings of fact if the findings are
supported by substantial evidence and no error of law occurred. Dixon v. Massanari, 270 F.3d
1171, 1176 (7th Cir. 2001). “Substantial evidence means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. Further, this Court may not reweigh
the evidence or substitute its judgment for that of the ALJ. Overman v. Astrue, 546 F.3d 456, 462
(7th Cir. 2008). While the Court reviews the ALJ’s decision deferentially, the Court cannot uphold
an ALJ’s decision if the decision “fails to mention highly pertinent evidence, . . . or that because
of contradictions or missing premises fails to build a logical bridge between the facts of the case
and the outcome.” Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010) (citations omitted).
The ALJ “need not evaluate in writing every piece of testimony and evidence submitted.”
Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993). However, the “ALJ’s decision must be
based upon consideration of all the relevant evidence.” Herron v. Shalala, 19 F.3d 329, 333 (7th
Cir. 1994). The ALJ is required to articulate only a minimal, but legitimate, justification for his
acceptance or rejection of specific evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700
(7th Cir. 2004).
III. THE ALJ’S DECISION
The ALJ first determined that Dawson met the insured status requirement of the Act for
DIB through December 31, 2016. The ALJ then began the five-step analysis. At step one, the
ALJ found that Dawson had not engaged in substantial gainful activity since October 8, 2012, the
alleged disability onset date. The ALJ noted that, while Dawson had some work activity in early
2013 after the disability onset date, the work did not rise to the level of substantial gainful activity.
At step two, the ALJ found that Dawson had the following severe impairments: peripheral
neuropathy, chronic fatigue, bilateral carpel tunnel syndrome, and cervical degenerative disc
disease. Also at step two, the ALJ stated that Dawson did not have a medically determinable
impairment of fibromyalgia. At step three, the ALJ concluded that Dawson did not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ then determined that Dawson had an RFC to perform light work with the
following additional limitations:
She can stand and/or walk for up to a total of 4 hours in an 8-hour workday, and
can sit for up to a total of 6 hours in an 8-hour workday. She can occasionally climb
ramps and stairs; can never climb ladders, ropes, or scaffolds; and can occasionally
balance, stoop, kneel, crouch, and crawl. She can frequently bilaterally handle and
finger. Regarding the neck, she can perform flexion, extension, and rotation
frequently. She can perform goal-oriented rather than production-oriented work.
She can perform productive work tasks for up to an average of 95 to 100% of an 8hour workday, not including the typical morning, lunch, and afternoon breaks.
(Filing No. 13 at 24).
At step four, the ALJ determined that Dawson was able to perform her past relevant work
as a plasma donor processor because the demands of this past work were within Dawson’s RFC
according to the vocational expert’s opinion. Because the ALJ determined that Dawson could
perform her past relevant work, the ALJ did not proceed to step five of the sequential evaluation
process. Having determined that Dawson could perform her past relevant work, the ALJ also
determined that Dawson was not disabled. Therefore, the ALJ denied Dawson’s application for
DIB because she was not disabled.
In her request for judicial review, Dawson asserts two arguments. First, she argues the
ALJ erred by failing to properly account for and analyze the record evidence of her fibromyalgia
at Step 2, which then led to erroneous considerations and conclusions at the subsequent steps of
the sequential evaluation process. Second, Dawson asserts that the ALJ improperly assessed her
credibility by not analyzing and citing to record evidence and by improperly determining there
was a lack of objective evidence of her fibromyalgia. Dawson also briefly argues that the ALJ
erred by equating limited daily activities with fulltime employment activities and by failing to
indicate what weight was given to the opinion of Dr. Arenas, the state agency consultative
The Court first addresses Dawson’s argument that the ALJ erred by failing to properly
account for and analyze the record evidence of her fibromyalgia at Step 2. Dawson further asserts
that the ALJ’s error at Step 2 then led to erroneous considerations and conclusions at the
subsequent steps of the sequential evaluation process. Dawson explains that the ALJ entirely
ignored the record evidence regarding her fibromyalgia, simply recited the SSR 12-2p criteria for
evaluating fibromyalgia, and then without any analysis, perfunctorily stated, “[u]nder these
examination protocols, the medical evidence does not contain sufficient material to establish
fibromyalgia as a medically determinable impairment.” (Filing No. 13 at 23.)
The Commissioner responds to Dawson’s argument by claiming that the ALJ’s decision
was supported by substantial evidence and that the ALJ addressed at later steps in the analysis the
underlying medical records of the treating and consulting physicians who found that Dawson had
fibromyalgia. The Commissioner argues that this is sufficient. Therefore, the Commissioner
asserts, the ALJ’s decision is supported and should be affirmed.
After reviewing the decision of the ALJ, the Court points out that at Step 2 of the evaluation
process the ALJ simply noted that a diagnosis of fibromyalgia was present in the medical evidence
and then quoted at length the criteria for evaluating fibromyalgia under SSR 12-2p. After the
ALJ’s lengthy recitation of the SSR criteria, he simply asserted that “[u]nder these examination
protocols, the medical evidence does not contain sufficient material to establish fibromyalgia as a
medically determinable impairment.” (Filing No. 13 at 23.) The ALJ provided no analysis. There
was no evaluation.
No record medical evidence was mentioned, discussed, considered, or
reviewed. The ALJ provides no “logical bridge” or “path of reasoning” for the Court to follow.
While the ALJ “is not required to address every piece of evidence or testimony,” he must
“provide some glimpse into [his] reasoning . . . [and] build an accurate and logical bridge from the
evidence to [his] conclusion.” Dixon, 270 F.3d at 1176. The Court “must be able to trace the
ALJ’s path of reasoning” from the evidence to his conclusion. Clifford v. Apfel, 227 F.3d 863, 874
(7th Cir. 2000). The ALJ’s decision provides no “path of reasoning” for the Court to “trace”
regarding the Step 2 determination that fibromyalgia is not a medically determinable impairment
suffered by Dawson. This shortcoming requires remand.
Additionally, “[a]n ALJ has the obligation to consider all relevant medical evidence and
cannot simply cherry-pick facts that support a finding of non-disability while ignoring evidence
that points to a disability finding.” Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010).
As noted above, Dr. Litz treated Dawson for fibromyalgia and 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. These notes were recorded in December
2011, July 2012, September 2012, and February 2013 (Filing No. 13-1 at 101, 88, 84, 134). Dr.
Ibrahim, a pain specialist, noted Dawson’s widespread pain that occurred daily and was a 7 on a
scale of 1 to 10. Her pain was both above and below the waist and on both sides of her body, and
she experienced fatigue and tiredness. 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 his examination of Dawson, Dr. Kteleh (a rheumatologist) noted that Dawson
suffered diffuse pain and achiness in her muscles and joints, especially in her shoulders, neck,
back, and knees. Dr. Kteleh recorded, “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). Finally, Dr. Arenas
conducted a physical consultative examination of Dawson and noted her diagnosis of fibromyalgia
with diffusely limited range of motion in the cervical and lumbar spine, shoulders, knees, and hips.
He also noted Dawson’s pain in all extremities upon movement and a sensitivity to touch. Dr.
Arenas observed obvious signs of fatigue and pain on examination (Filing No. 13-1 at 116–22).
None of these facts were mentioned, analyzed, or discussed in the ALJ’s decision when he
determined that the medical evidence did not contain sufficient material to establish fibromyalgia
as a medically determinable impairment. It appears that the ALJ “ignor[ed] evidence that points
to a disability finding” and “simply cherry-pick[ed] facts that support a finding of non-disability.”
Denton, 596 F.3d at 425. This error serves as another basis for remanding this case for further
As the Court noted above, the combined effect of all the impairments of the claimant must
be considered throughout the disability determination process. 42 U.S.C. § 423(d)(2)(B). By
completely ignoring fibromyalgia at Step 2, the ALJ also failed to account for it throughout the
rest of the evaluation process. It was not considered at Step 3, during the RFC determination, or
at Step 4.
The Court also notes that the ALJ determined that Dawson suffered from chronic fatigue
as a severe impairment. However, the ALJ failed to discuss, mention, or analyze in any way
Dawson’s chronic fatigue at Step 3, and thus, the Court is left to speculate whether this impairment
was considered at all during that part of the disability evaluation. See Filing No. 13 at 24.
Because the Court determines that remand is necessary based on the first argument
presented by Dawson, the Court only briefly addresses Dawson’s additional arguments regarding
the credibility assessment and failing to indicate what weight was given to the opinion of Dr.
Arenas. Upon review of the ALJ’s decision, the Court determines that the ALJ failed to take into
consideration Dawson’s fibromyalgia and the evidence supporting that impairment when assessing
Dawson’s credibility. On remand, the ALJ should account for Dawson’s fibromyalgia when
making the credibility determination.
Additionally, the ALJ did not indicate what weight he gave to the opinion of Dr. Arenas, the
state agency consultative examiner. While the ALJ discussed Dr. Arenas’s consultative
examination in his decision, the ALJ did not explain the weight given to Dr. Arenas’s opinions or
the reasons for such weight. While this shortcoming may have been harmless in this case, because
the Court is remanding the case for further consideration, the ALJ should further explain the
treatment of Dr. Arenas’s opinion on remand.
For the reasons set forth above, the final decision of the Commissioner is REMANDED
for further proceedings consistent with this Entry as authorized by Sentence Four of 42 U.S.C. §
Timothy E. Staggs
ARNHOLT & STAGGS LAW OFFICE
Kathryn E. Olivier
UNITED STATES ATTORNEY’S OFFICE
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