O'MAHONY v. COLVIN

Filing 15

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 6/3/2015. It is RECOMMENDED that Defendant's decision finding no disability be reversed and that the matter be remanded under sentence fou r of 42 U.S.C. § 405(g), for further administrative proceedings to evaluate whether Plaintiff's recent history of frequent hospitalizations affects his ability to obtain gainful employment. As a result, Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) should be denied and Plaintiff's Motion for Summary Judgment (Docket Entry 9 ) should be granted. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JERRY D. O’MAHONY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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1:13CV35

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Jerry O’Mahony, brought this action pursuant to
Section 205(g) of the Social Security Act, as amended (42 U.S.C.
§ 405(g)), to obtain judicial review of a final decision of
Defendant, the Acting Commissioner of Social Security, denying
Plaintiff’s claims for a period of disability and Disability
Insurance Benefits (“DIB”) under Title II of the Social Security
Act (the “Act”), and for Supplemental Security Income (“SSI”) under
Title XVI of the Act.

(See Docket Entry 1.)

The Court has before

it the certified administrative record (cited herein as “Tr. __”).
Plaintiff has filed a Motion for Summary Judgment (Docket Entry 9)
and Defendant has filed a Motion for Judgment on the Pleadings
(Docket Entry 13).

For the reasons that follow, the Court should

remand the matter for further consideration.

PROCEDURAL HISTORY
Plaintiff applied for DIB, a period of disability, and SSI,
with an amended onset date of July 11, 2011.

(Tr. 192-94, 195-99.)

After denial of his application, both initially (Tr. 92, 93) and on
reconsideration (Tr. 118, 119), Plaintiff requested a hearing de
novo before an Administrative Law Judge (“ALJ”) (Tr. 147-48).
Plaintiff, his attorney, and a vocational expert attended the
hearing.

(Tr.

26-71.)

The

ALJ

thereafter

determined

that

Plaintiff did not qualify as disabled within the meaning of the
Act.

(Tr.

16-25.)

Plaintiff’s

request

The
for

Appeals

Council

review,

thereby

subsequently
making

denied

the

ALJ’s

determination the Commissioner’s final decision for purposes of
judicial review.
In

rendering

(Tr. 1-3.)
that

disability

ruling,

the

ALJ

made

following findings later adopted by the Commissioner:
1. [Plaintiff] meets the insured status requirements of
the Social Security Act through March 31, 2012.
2. [Plaintiff] has not engaged in substantial gainful
activity since July 11, 2011, the alleged onset date (20
CFR 404.1571 et seq., and 416.971 et seq.).
3. [Plaintiff] has the following severe impairments:
pancreatitis and anemia (20 CFR 404.1520(c) and
416.920(c)).
. . .
4. [Plaintiff] does not have an impairment or combination
of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR Part
2

the

404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).
. . .
5. . . . [Plaintiff] has the residual functional capacity
to perform light work as defined in 20 CFR 404.1567(b)
and 416.967(b) except that [Plaintiff] is limited to
occasional balancing, stooping, kneeling, crouching, and
crawling.
He should avoid concentrated exposure to
hazardous conditions.
(Tr. 18-21.)
In

light

functional

of

the

capacity,

foregoing

the

ALJ

findings

determined

regarding

that

residual

Plaintiff

could

perform his past relevant work as an auto part salesperson.
23.)

(Tr.

Alternatively, the ALJ noted that a significant number of

other jobs existed in the national market that he could perform.
(Tr. 23-24.)

Accordingly, the ALJ ruled that Plaintiff did not

have a disability, as defined in the Act, at any time from the
alleged onset date through the date last insured.

(Tr. 24.)

DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
are not to try the case de novo.”
396, 397 (4th Cir. 1974).

“The courts

Oppenheim v. Finch, 495 F.2d

Instead, “a reviewing court must uphold

the factual findings of the ALJ [underlying the denial of benefits]
3

if they are supported by substantial evidence and were reached
through application of the correct legal standard.”

Hines, 453

F.3d at 561 (internal brackets and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).

“It consists of

more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”

Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted).

“If

there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”

Hunter,

993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).

“Where

conflicting evidence allows reasonable minds to differ as to
whether

a

claimant

is

disabled,

the

responsibility

for

that

decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).

“The issue before

[the reviewing court], therefore, is not whether [the claimant] is
disabled, but whether the ALJ’s finding that [the claimant] is not
4

disabled is supported by substantial evidence and was reached based
upon a correct application of the relevant law.”

Craig v. Chater,

76 F.3d 585, 589 (4th Cir. 1996).
In confronting that issue, the Court must note that “[a]
claimant for disability benefits bears the burden of proving a
disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981), and
that, in this context, “disability” means 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,’” id. (quoting 42
U.S.C. § 423(d)(1)(A)).

“To regularize the adjudicative process,

the Social Security Administration has . . . promulgated . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical

condition.”

Id.

“These

regulations

establish

a

‘sequential evaluation process’ to determine whether a claimant is
disabled.”

Id. (internal citations omitted).

This sequential evaluation process (“SEP”) has up to five
steps:

“The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
5

that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).1

A finding adverse to a claimant at any of

several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.

The second step determines if the

claimant is ‘severely’ disabled.

If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”

Id. at 179.2

Step four then requires the ALJ to assess

1

“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
2

“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and

6

whether, based on that RFC, the claimant can perform “past relevant
work” (“PRW”); if so, the claimant does not qualify as disabled.
Id. at 179-80.

However, if the claimant establishes an inability

to return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65.

If, at this step, the government cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs

available

disabled.

in

the

community,”

the

claimant

qualifies

as

Hines, 453 F.3d at 567.3
ASSIGNMENT OF ERROR

Plaintiff argues that the ALJ erred by not considering and
explaining the effect of Plaintiff’s recent history of frequent
hospitalizations on his ability to obtain and sustain employment.
(Docket Entry 10 at 3-5.)

Plaintiff notes that, from the period of

the onset date to the hearing, he spent approximately 25 days

any related symptoms (e.g., pain).”

Hines, 453 F.3d at 562-63.

3

A claimant thus can qualify as disabled via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).

7

hospitalized.

(Id. at 4; see also Tr. 255-58 (elaborating on

Plaintiff’s hospitalizations in his hearing brief).)

Further, at

the hearing, Plaintiff (through counsel) asked the vocational
expert “if, during a 10-month period of working, the individual
would be out of work for approximately 25 days, would that affect
your testimony in any way?”
confirmed

that

circumstance

(Tr. 69.)
“would

not

The vocational expert
allow

for

competitive

employment.” (Tr. 69.) Accordingly, Plaintiff claims that the ALJ
should have, but failed to, address the effect of Plaintiff’s
recent history of frequent hospitalizations.

(Docket Entry 10 at

4-5.)
Defendant contends that the “failure to discuss a specific
piece of evidence is not an indication that the evidence was not
considered.” (Docket Entry 14 at 7 (relying on parenthetical
quotation in Malloy v. Colvin, 1:10-cv-420, 2013 WL 2147681, at *6
(M.D.N.C.

May

16,

2013)

(unpublished)

(Webster,

M.J.),

recommendation adopted, slip op. (M.D.N.C. July 10, 2013) (Beaty,
J.)).)

Defendant argues the ALJ must have considered and rejected

Plaintiff’s

hospitalization

argument

because

the

ALJ

Plaintiff’s hearing brief which contained that argument.
7-8 (citing Tr. 16, 19).)

cited
(Id. at

Thus, Defendant asserts, the Court

should overrule Plaintiff’s assignment of error and affirm the
denial of benefits.

8

Although the ALJ’s failure to discuss a particular piece of
evidence does not necessarily indicate that the ALJ failed to
consider the evidence, see Malloy, 2013 WL 2147681, at *6, the
ALJ’s opinion must still demonstrate that “all relevant evidence
was considered, though not written about, in reaching the ultimate
decision,” Mellon v. Astrue, No. 4:08-2110-MBS, 2009 WL 2777653, at
*13 (D.S.C. Aug. 31, 2009) (unpublished).

In this case, the ALJ

did not demonstrate that she took Plaintiff’s recent history of
frequent hospitalizations into account.
Defendant’s reliance on the ALJ’s citations to Plaintiff’s
hearing brief fails.

The first citation occurs in the context of

the ALJ’s discussion of the amended onset date.

(Tr. 16.)

The

second citation involves the ALJ noting that Plaintiff did not
argue that his tinnitus constituted a severe impairment. (Tr. 19.)
Such citations do not demonstrate that the ALJ considered the
specific evidence at issue. Moreover, nothing appears in the ALJ’s
decision to show that she considered Plaintiff’s recent history of
frequent hospitalizations

or

rejected

the

vocational

expert’s

opinion that prospective absenteeism at that rate would preclude
competitive employment.

(See Tr. 16-25.)

Accordingly, the record

does not establish that “all relevant evidence was considered,
though not written about, in reaching the ultimate decision,”
Mellon, 2009 WL 2777653, at *13; see also Richmond v. Chater, 94
F.3d 647 (table), 1996 WL 467653, at *4 (7th Cir. 1996) (holding
9

that an “ALJ may not select and discuss only that evidence that
favors his ultimate conclusion”).
Other courts have noted the significance of evidence of
frequent hospitalizations and the need for ALJs to confront such
evidence in their decisions.

See Kangas v. Bowen, 823 F.2d 775,

778 (3d Cir. 1987) (remanding based on the ALJ’s failure to
consider the claimant’s frequent hospitalizations); Sweeney v.
Commissioner of Soc. Sec., 847 F. Supp. 2d 797, 806 (W.D. Pa. 2012)
(observing that the ALJ failed to consider a claimant’s frequent
hospitalizations and remanding for further consideration); see also
Rizzo v. Astrue, No. 8:09-CV-477-T-TGW, 2010 WL 137805, at *2 (M.D.
Fla. Jan. 12, 2010) (unpublished) (ordering remand because the ALJ
failed to consider potential numerous absences from work due to
impairment).

In sum, the ALJ erred by failing to analyze the

effect of Plaintiff’s recent history of frequent hospitalizations
on his ability to obtain employment, and the Court should remand
this case for further consideration of that issue.
Defendant makes two additional arguments in attempting to moot
Plaintiff’s position.

First, Defendant contends that Plaintiff’s

hospitalizations resulted from his excessive drinking and failure
to follow medical advice, and that the Commissioner could deny
Plaintiff’s benefits for that reason.

(Docket Entry 14 at 8.)

Second, Defendant suggests that remand would serve no purpose as
the ALJ would simply reaffirm the finding of no disability on the
10

basis that Plaintiff had inadequately demonstrated his inability to
work for a 12-month period.

(Id. at 9.)

In that regard, Defendant

notes that the Act requires an individual to prove the existence of
a physical or mental impairment which has lasted or can be expected
to last at least 12 months, and which has left or would leave the
individual unable to work for at least 12 months.
concedes the former and contests the latter.
Defendant

contends

that

the

evidence

(Id.)

(Id.)

Defendant

Specifically,

presented

to

the

ALJ

demonstrated that Plaintiff could not work from July 2011 to April
2012 - a period of 10 months, not 12 months - thereby failing to
meet the Act’s definition of disability.

(Id.)

Defendant posits, remand would accomplish nothing.
The

ALJ

did

not

make

any

determination

Accordingly,
(Id.)
on

either

of

Defendant’s foregoing arguments (see Tr. 16-25), and the Court
cannot consider post-hoc rationalizations, see Anderson v. Colvin,
No. 1:10CV671, 2014 WL 1224726, at *1 (M.D.N.C. Mar. 25, 2014)
(unpublished) (Osteen, C.J.)

(citing Securities & Exch. Comm’n v.

Chenery Corp., 332 U.S. 194 (1947)).
reviewing

the

rationalizations

administrative agency.

Id.4

Chenery limits the Court to

initially

put

forth

by

an

As to Defendant’s first argument, the

ALJ did not address whether Plaintiff’s alleged failure to follow

4

Although the Court uses a harmless error standard of review, Dyrda v.
Colvin, 47 F. Supp. 3d 318, 326 (M.D.N.C. 2014), the Court cannot “parse the
administrative transcript and make several dispositive findings of fact that the
ALJ did not make,” Anderson, 2014 WL 1224726, at *4.

11

treatment would constitute a basis for denying benefits.
16-25.)

(See Tr.

Such a decision would conceivably require a detailed

analysis of, inter alia, the impairment’s causes and treatment,
whether the treatment would effectively alleviate the symptoms of
the impairment to allow for work, and whether the individual
complied with the treatment. See generally Nunley v. Barnhart, 296
F. Supp. 2d 702, 703-04 (W.D. Va. 2003) (discussing the steps an
ALJ took in denying benefits based on treatment non-compliance);
Social Security Ruling 82-59 (requiring that a claimant have
opportunity to explain any treatment non-compliance).
whether

Defendant’s

impairment

would

have

Similarly,

prevented

him

from

working for 12 months would likely require factual findings that
the ALJ has not made.

Accordingly, Defendant’s arguments fail.

IT IS THEREFORE RECOMMENDED that Defendant’s decision finding
no disability be reversed and that the matter be remanded under
sentence four of 42 U.S.C. § 405(g), for further administrative
proceedings to evaluate whether Plaintiff’s recent history of
frequent hospitalizations affects his ability to obtain gainful
employment.

As a result, Defendant’s Motion for Judgment on the

Pleadings (Docket Entry 13) should be denied and Plaintiff’s Motion
for Summary Judgment (Docket Entry 9) should be granted.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 3, 2015
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