Brown v. Colvin
| Decision Date | 27 September 2016 |
| Docket Number | 15-CV-4823 (RLE) |
| Parties | JOHNNIE BROWN, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Southern District of New York |
I. INTRODUCTION
Plaintiff Johnnie Brown ("Brown") commenced this action under the Social Security Act (the "Act"), 42 U.S.C. § 405(g)), challenging a final decision of the Commissioner of Social Security (the "Commissioner") denying his claim for Social Security Disability ("SSD") and Supplemental Security Income ("SSI"). On July 7, 2016, the Parties consented to the jurisdiction of the undersigned for all proceedings pursuant 28 U.S.C. § 636(c).
On January 8, 2016, Brown moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), asking the Court to reverse the March 7, 2014 decision of the Commissioner and to award and calculate benefits, or, in the alternative, to remand for a new hearing. Brown argues that he is per se disabled under Medical Listing 12.05C, that the administrative law judge ("ALJ") failed to weigh the medical opinion evidence properly, and that the ALJ failed to evaluate Brown's credibility. On February 23, 2016, the Commissioner cross-moved for judgment on the pleadings pursuant to Rule 12(c) for an order affirming the Commissioner's decision.
For the reasons that follow, Brown's motion is GRANTED and the case is REMANDED to the Commissioner for reconsideration and further development of the record.
II. BACKGROUND
On January 21 and January 30, 2009, Brown applied for SSD and SSI, respectively, because of a hernia, a pulled muscle, blurry vision, numbness in his left arm, and back pain. (Transcript of Administrative Proceedings ("Tr.") at 197-98, 457.) On March 19, 2009, the Social Security Administration ("SSA") denied Brown's application. (Id. at 219). On May 20, 2009, Brown requested a hearing before an ALJ, which was held before ALJ Seth Grossman on June 18, 2010. (Id. at 227-29, 239). ALJ Grossman issued a decision on November 30, 2010, finding that Brown was not disabled within the meaning of the Act. (Id. at 219-26). Brown requested review of the ALJ's decision by the Appeals Council. (Id. at 304-05). On May 7, 2010, the Appeals Council remanded the claim, finding that the ALJ had not fully addressed Brown's alleged impairments of "mental retardation" or his psychological diagnoses, and requiring that the ALJ consider new and material evidence submitted for review. (Id. 214-18). After hearings on June 18, 2010, October 8, 2010, July 30, 2012, March 18, 2013, and October 25, 2013, ALJ Grossman issued a decision on March 7, 2014, finding that Brown was not disabled. (Id. at 142, 187, 124-41, 44-74, 75-123, 20-43). Brown requested review of the ALJ's decision. (Id. at 17-19). On April 22, 2015, the Appeals Council denied review, making the ALJ's decision the Commissioner's final decision. (Id. at 1-6.)
Brown was born in 1955. (Tr. at 179.) He is single, and has two sons and a daughter. (Id. at 52, 84.) He lives with his daughter and her child. (Id. at 84.) He attended school until the seventh grade, taking special education classes. (Id. at 50-51.) Brown previously worked as a prep cook, a short order cook, a dishwasher, an usher, and a waiter. (Id. at 54, 134-37.) At the October 2010 hearing, Brown testified that he left his last job at a restaurant in 2008 "because the doctor told [him he] had to stop working" and because "the restaurant locked down." (Id. at 150, 153.)
Brown testified in hearings held in 2010, 2012, and 2013, that he cannot work because of his back pain, heart problems, shoulder problems, and a hernia. (Tr. at 152, 131, 81.) His testimony often reflected communication difficulties. He stated that he can no longer stand up or lift items anymore "because [he] got poison in the side of [his] stomach" from his hernia. (Id. at 153.) Although he had surgery for the hernia in 2011, he still has pain when he "lift[s] something too heavy." (Id. at 133.) Brown also testified that he cannot walk more than a block. (Id. at 172.) He described difficulties filling out job applications and reading newspaper and magazine articles. (Id. at 56-57.) He said that he had someone read the hearing notice to him. (Id. at 129.) Brown had difficulty doing mental math questions the ALJ asked him. For example, he could not determine how much change he would give if he were given a dollar for a seventy-three cent item, but could calculate the change for a fifty cent item. (Id. at 129-30). When the ALJ asked Brown, "you're not mentally retarded, are you?" Brown replied that he was "not retarded," and added that he cannot read. (Id. at 163.) When asked what was "physically" wrong with him, Brown replied, "I'm slow, real slow." (Id. at 129.)
At the October 2013 hearing, Brown testified that he watches his granddaughter and takes her to the park. (Id. at 82.) He noted that he does not carry her, but pushes her stroller. (Id. at 83.) He does not cook for his granddaughter but microwaves food that his daughter has left. (Id. at 82.) His daughter also handles the laundry and money. (Id. at 172.) Although he told a social worker that he does laundry and cleans the house, he testified at the October 2010 hearing that he stopped doing those activities because his knees began to give out. (Id. at 173.) He testified that he can walk for more than an hour a day but cannot sit for "too long." (Id. at 106.) The ALJ noted that Brown was using a cane during the July 2012 hearing, which Brown explained was because his back "is out of order...dislocated." (Id. at 131). At the October 2013 hearing, Brown testified that his "back was starting to get to [him]" during the hearing. (Id. at 106.)
Brown had received treatment by Dr. Marguerite Bernard, his primary care physician at Morris Height Health Center, since April 2009. (Tr. at 746.) Most of Brown's visits with Dr. Bernard addressed his lower back pain, hernia, and depression. (Id. at 635.) On April 28, 2009, Dr. Bernard diagnosed a left inguinal hernia.1 (Id.) On December 30, 2009, he diagnosed Brown with mild depression and referred him to a behavioral health specialist after Brown stated he was "wrapped too tight." (Id. at 724.) On a July 16, 2010 visit, Brown complained of pain when he tried to stand. (Id. at 716.) Dr. Bernard's physical examination revealed no acute distress, and she prescribed Tramadol for pain. (Id. at 717). She referred Brown to a psychiatric specialist and to a urologist for his hernia. (Id.)
On July 16, 2010, Dr. Bernard ordered x-rays of Brown's spine and hips, which showed mild anterior spondylosis2 and degeneration of the spine at L4-L53. (Tr. at 720-22.) She opined that although the x-rays were "indicative of possible early osteoarthritis," they were otherwise "unremarkable." (Tr. at 636.) On a July 29, 2010 Multiple Impairment Questionnaire, Dr. Bernard described Brown's lower back pain as "sharp, when he tries to stand." (Id. at 636.) Brown reported that the lower back pain started after a motor vehicle accident in 1972. (Id.) Dr. Bernard estimated his level of pain at eight out of ten, or "moderately severe." (Id. at 637.) She opined that Brown could lift or carry up to five pounds occasionally, and stated that Brown should avoid pushing or pulling objects greater than five pounds because of his inguinal hernia. (Id. at 638.) She stated that Brown's symptoms were severe enough to interfere with his attention and concentration frequently, and she determined that he had "mild depression." (Id. at 640.) Dr. Bernard thought Brown was capable of low stress work, would need around four breaks in an eight-hour workday, and would have to rest fifteen to thirty minutes before returning to work. (Id. at 640.) She determined that Brown's impairments were likely to produce "good days" and "bad days," and that he would likely be absent more than three times a month from work. (Id. at 641.)
Brown had hernia surgery on December 14, 2010. (Tr. at 857-80.) On March 11, 2011, he returned to Dr. Bernard for low back pain. (Id. at 810.) Dr. Bernard advised him to avoid lifting, pushing, or pulling heavy objects and prescribed Tramadol. (Id. at 811.)
Brown visited Dr. Chaula Patel multiple times throughout 2011, 2012, and 2013, complaining of low back pain. (Tr. at 856, 815, 863, 899, 885, 902, 915, 921.) During his first visit, in March 28, 2011, Brown indicated that he had had chronic back pain for more than ten years, which included a "pins and needles" sensation going down his right leg, pain after walking three to four blocks, and an inability to stand for more than four to five minutes at a time before feeling tired. (Tr. at 856.)
In a Multiple Impairment Questionnaire administered on July 28, 2011, Dr. Patel diagnosed Brown with chronic low back pain, and opined that in an eight-hour workday, Brown could sit for eight hours, stand or walk for two to three hours, lift or carry five pounds frequently and ten pounds occasionally. (Tr. at 817, 819-20.) She opined that Brown would likely have "good days" and "bad days," and would need to take unscheduled breaks to rest every two hours during an eight-hour workday for five to ten minutes at a time. (Tr. at 822-23.) She speculated that Brown would likely be absent from work two to three times a month. (Tr. at 823.) She reported no limitations in performing repetitive reaching, turning and lifting, and did not think Brown's pain would interfere with his attention and concentration. (Tr. at 821-22.)
In a second Multiple Impairment Questionnaire administered on October 19, 2012, Dr. Patel's opinion suggested worsening symptoms. (Tr. at 887-88.) She reported that in an eight-hour workday,...
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