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Tommaney v. Commissioner of Social Security

United States District Court, D. New Jersey

August 1, 2014

ROBERT TOMMANEY, as executor of the Estate of Patrick Tommaney Plaintiff,


KEVIN McNULTY, District Judge.


This action is brought by Robert Tommaney, as executor of the estate of Patrick Tommaney, pursuant to 42 U.S.C. § 405(g). He seeks this Court's review of a final decision of the Defendant Commissioner of Social Security denying a claim for Social Security Disability Insurance benefits made by Patrick Tommaney. (Herein, "Tommaney" refers to Patrick Tommaney, who died on February 23, 2014.)

Patrick Tommaney sought benefits primarily on the basis of a chronic back condition, and secondarily on a traumatic injury. With regard to his back, Mr. Tommaney required spinal fusion surgery in March of 2002; from November 2001 to April 2003, he was unable to work and received disability benefits. He then returned to his job as a general manager of a restaurant, because the surgery had provided some relief. However, his pain allegedly increased again in May 2006. The pain was reportedly so great that he began abusing a prescription pain killer. Over the next two years, he received several forms of treatment, culminating in surgery to remove scar tissue, followed by physical therapy at the Kessler Rehabilitation Institute. Finally, by the end of July 2008, his pain subsided and he could allegedly resume working. The claimed disability period is therefore August 2006 through July 2008. Mr. Tommaney obtained new employment in January 2009.

It was during that period of disability that Mr. Tommaney suffered a traumatic accident. On August 22, 2006, he lost his footing trying to walk through a curbside construction zone in downtown Ramsey, New Jersey. He slipped and fell onto a piece of steel used for concrete reinforcement, and was impaled through the scrotum. He was hospitalized for five days, but after the initial extreme pain, he suffered no long term physical injuries. He alleged, however, that he suffered from post-traumatic stress disorder for some time following the accident.

On April 11th, 2007, Mr. Tommaney applied for Social Security disability benefits, running from August 26, 2006. The Commissioner, in July 2007, denied Mr. Tommaney's claim, and did so again upon reconsideration in February 2008. In July 2009, Plaintiff received a 44-minute hearing before an Administrative Law Judge in Newark. He appeared and testified without an attorney.

In March 2010, the ALJ issued a decision finding that Mr. Tommaney was not disabled. The Commissioner's Appeals Council thereafter denied a request for review by Mr. Tommaney, rendering the ALJ's decision the Commissioner's final decision. Mr. Tommaney initiated this action in August 2012, appealing the Commissioner's final decision.

This was a close case. Benefits were denied primarily on the basis of a judgment call at Step 5 of the required five-part analysis. Although my opinion differs from that of the able Administrative Law Judge, I intend no criticism in finding that the decision should be reversed and benefits should be awarded. Indeed, it was only the ALJ's compilation of a full record, despite the claimant's pro se status, and her willingness to entertain factual conclusions different from her own when soliciting alternative opinions from the vocational expert, that made a full review possible and avoided the necessity of a remand.

Standard of Review

My review of all legal issues presented is plenary.[1] As to factual findings, I will adhere to the ALJ's findings, as long as they are supported by substantial evidence.[2] For disputed findings, I will "determine whether the administrative record contains substantial evidence supporting the findings."[3] Substantial "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[4] This is "less than a preponderance of the evidence but more than a mere scintilla."[5]

I may, under 42 U.S.C. § 405(g) and the Third Circuit's Podedworny opinion, affirm, modify, or reverse the Secretary's decision, with or without a remand to the Secretary for a rehearing.[6]

Outright reversal with an awarding of benefits is appropriate only when a fully developed administrative record contains substantial evidence indicating that the claimant is disabled and entitled to benefits.[7] I note that in assessing whether the record is sufficiently developed, the courts take a more liberal approach when the petitioner has already faced long processing delays.[8]

Remand is proper if the record is incomplete, or if there is a lack of substantial evidence to support a definitive finding on one or more steps of the required five step inquiry, described below.[9] Remand is also proper if the ALJ's decision lacks adequate reasoning or support for his or her conclusions, or if it contains illogical or contradictory findings.[10] It is also proper where the ALJ's findings are not the product of a complete review of the record evidence which "explicitly' weigh[s] all relevant, probative and available evidence."[11] The Commissioner, though entitled to "accept some parts of the medical evidence and reject other parts, " "must consider all the evidence, " and explain any "rejection of probative evidence which would suggest a contrary disposition."[12]

The ALJ's Five-Step Analysis

There is a well-known, five-step evaluation process for determining whether a claimant is "disabled, " and thus entitled to benefits under the Social Security Act. I here incorporate and summarize the process as set forth in 20 C.F.R. §§ 404.1520 and 416.920, and the ALJ's findings at each step.

STEP 1: Determine whether the claimant has engaged in substantial gainful activity since the onset date of the alleged disability. 20 CFR §§ 404.1520(b), 416.920(b). If not, move to step two.

At Step 1, the ALJ found that Mr. Tommaney did not have any gainful employment from August 2006 through July 2008. She thus moved on to Step 2.

STEP 2: Determine if the claimant's alleged impairment, or combination of impairments, is "severe." Id. §§ 404.1520(c), 416.920(c). If the claimant has a severe impairment, move to step three.

At Step 2, the ALJ found that Mr. Tommaney had the severe impairment of failed back syndrome (status post lumbar fusion), ' and that this impairment would last at least another twelve months.

STEP 3: Determine whether the impairment meets or equals the criteria of any impairment found in the Listing of Impairments. 20 CFR Part 404, Subpart P, Appendix 1, Part A. If so, the claimant is automatically eligible to receive ...

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