Gagliano v. Social Security Administration
ORDER REMANDING TO THE COMMISSIONER. The Court concludes that the record as a whole does not contain ample evidence that "a reasonable mind might accept as adequate to support [the] conclusion" of the ALJ in this case. On remand, the ALJ should further develop the record by recontacting Gagliano's treating physicians or ordering a consultative examination, if necessary. Signed by Magistrate Judge J. Thomas Ray on 6/28/2017. (jak)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NANCY A. BERRYHILL,
Social Security Administration
ORDER REMANDING TO THE COMMISSIONER
Susan Gagliano (“Gagliano”) applied for social security disability benefits
with an alleged disability onset date of January 16, 2014. (R. at 69). The
administrative law judge (“ALJ”) denied her application after a hearing. (R. at 25).
The Appeals Council denied her request for review. (R. at 1). The ALJ’s decision
now stands as the Commissioner’s final decision, and Gagliano has requested
For the reasons stated below, this Court reverses and remands the
The Commissioner’s Decision
The ALJ found that Gagliano had the severe impairments of depression,
anxiety, obesity, bilateral bunions and plantar fasciitis, sleep apnea, fibromyalgia,
degenerative disk disease of the lumber spine, degenerative disease of the knees, and
The parties have consented in writing to the jurisdiction of a United States Magistrate Judge.
neuropathy of the upper and lower extremities. (R. at 15). Based on those limitations,
the ALJ determined that Gagliano had the residual functional capacity (“RFC”) to
perform sedentary work except that she could only occasionally stoop, crouch,
crawl, and kneel, and could only perform work: where interpersonal contact is
incidental to the work performed, with incidental defined as interpersonal contact
requiring a limited degree of interaction such as meeting and greeting the public,
answering simple questions, accepting payment and making change; where
complexity of tasks can be learned by demonstration or repetition, within thirty days,
with few variables and little judgment; where the supervision required is simple,
direct, and concrete; and where rapid, repetitive flexion or extension of the wrists
bilaterally is not involved. (R. at 17–18).
In light of her RFC, the ALJ concluded that Gagliano could not return to her
past relevant work. (R. at 23). However, after hearing testimony from a vocational
expert, the ALJ concluded that Gagliano could perform other jobs available in the
national economy, such as document reviewer and circuit board inspector. (R. at 24).
Therefore, the ALJ held that Gagliano was not disabled. (R. at 25).
The Court’s function on review is to determine whether the Commissioner’s
decision is supported by substantial evidence on the record as a whole and whether
it is based on legal error. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015); see
also 42 U.S.C. § 405(g). While “substantial evidence” is that which a reasonable
mind might accept as adequate to support a conclusion, “substantial evidence on the
record as a whole” requires a court to engage in a more scrutinizing analysis:
“[O]ur review is more than an examination of the record
for the existence of substantial evidence in support of the
Commissioner’s decision; we also take into account
whatever in the record fairly detracts from that decision.”
Reversal is not warranted, however, “merely because
substantial evidence would have supported an opposite
Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (citations omitted).
Gagliano argues that the ALJ impermissibly drew his own inferences from the
record and failed to properly develop the record. She also maintains that the ALJ
improperly assessed her impairments. Because the Court agrees with Gagliano’s first
argument, it is not necessary to reach her second point.
Gagliano cites numerous occasions where the ALJ failed to account for
portions of the medical record or simply made erroneous statements about the
The ALJ noted that progress notes from January 17, 2014 “show no significant
change or deterioration in the claimant’s condition.” (R. at 19). The ALJ suggested
that this showed that Gagliano did not become disabled at her alleged onset date. (R.
at 19). Nerve conduction studies showed evidence of sensory polyneuropathy of the
lower extremities in December 2013. (R. at 384–85). Gagliano was also noted to
have increased myalgias in the arms and legs in December 2013. (R. at 592).
Gagliano first discussed fibromyalgia with a doctor on January 13, 2014. (R. at 586).
The ALJ seemingly disregarded these facts in determining whether Gagliano was
disabled. The Commissioner does not dispute that the ALJ erred in this analysis, but
contends that the error was harmless. The Court cannot agree, especially in light of
several other errors committed by the ALJ.
For example, the ALJ stated that progress notes from July and August 2014
were “relatively unchanged.” (R. at 20.) However, these notes contain changes to
medications and additional diagnoses. (R. at 662–67). Furthermore, the ALJ
mischaracterized tizanidine, fluoxetine, and alprazolam as “habit-forming
narcotics.” (R. at 20). Such language indicates that the ALJ based his credibility
assessment, in part, on the perception that Gagliano was a user of habit-forming
narcotics, an erroneous conclusion that was prejudicial to Gagliano.
The ALJ also discounted Gagliano’s description of her pain from
fibromyalgia as an “eight on a scale of ten most days” because the ALJ believed she
was in “no acute distress” and her x-rays were unremarkable. (R. at 21, 735-38).
These conclusions suggest the ALJ has an incomplete or erroneous understanding of
fibromyalgia. The Merck Manual indicates that diagnosis of fibromyalgia is based
upon pain at specific tender points and a history of widespread pain. The Merck
Manual, 376 (Robert S. Porter et al., eds., 19th ed. 2011). No confirming diagnostic
tests exist, and the Eighth Circuit has reversed where an ALJ found that fibromyalgia
was not substantiated by objective medical testing. Garza v. Barnhart, 397 F.3d
1087, 1089 (8th Cir. 2005). In this case, the physician reported that Gagliano had
18/18 tender points. (R. at 737). Furthermore, as Gagliano observes, the phrase “no
acute distress” does not indicate that Gagliano was not in pain. The ALJ’s
assessment of her pain is thus not substantiated by the evidence.
“[I]t is well settled that it is the ALJ's duty to develop the record fully and
fairly. This duty includes the responsibility of ensuring that the record includes
evidence from a treating physician, or at least an examining physician, addressing
the particular impairments at issue.” Strongson v. Barnhart, 361 F.3d 1066, 107172 (8th Cir. 2004). This record contains no opinion from a treating or examining
physician regarding Gagliano’s limitations. The treatment records do not clearly
establish limitations related to Gagliano’s ability to work. The ALJ’s assessments
are thus based on his own interpretation of the medical records, and this is not
permissible. Shontos v. Barnhart, 328 F.3d 418, 427 (8th Cir. 2003). Accordingly,
the case must be reversed and remanded for further development of the record.
It is not the task of this Court to review the evidence and make an independent
decision. Neither is it to reverse the decision of the ALJ because there is evidence in
the record which contradicts his findings. The test is whether there is substantial
evidence in the record as a whole which supports the decision of the ALJ. Miller,
784 F.3d at 477. After reviewing the entire record, including the briefs, the ALJ's
decision, and the transcript of the hearing, the Court concludes that the record as a
whole does not contain ample evidence that "a reasonable mind might accept as
adequate to support [the] conclusion" of the ALJ in this case. Richardson v. Perales,
402 U.S. 389, 401 (1971). On remand, the ALJ should further develop the record by
recontacting Gagliano’s treating physicians or ordering a consultative examination,
IT IS SO ORDERED this 28th day of June, 2017.
UNITED STATES MAGISTRATE JUDGE
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