Brown v. Colvin

• Decision Date: 10 June 2014
• Docket Number: No. 12 Civ. 7092PAEKNF.,12 Civ. 7092PAEKNF.
• Citation: 73 F.Supp.3d 193
• Parties: Arthur Felder BROWN, III, Petitioner, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Respondent.
• Court: U.S. District Court — Southern District of New York

73 F.Supp.3d 193

Arthur Felder BROWN, III, Petitioner

v.Carolyn W. COLVIN, Acting Commissioner of Social Security, Respondent.

No. 12 Civ. 7092PAEKNF.

United States District Court, S.D. New York.

Signed June 10, 2014.

Charles E. Binder, Binder and Binder P.C., New York, NY, for Petitioner.

John E. Gura, Jr., New York, NY, for Respondent.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Plaintiff Arthur F. Brown III (“Brown”) brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (“Commissioner”), which denied Brown's application for disability insurance benefits under Title II of the Social Security Act. Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Before the Court is the January 10, 2014 Report and Recommendation of Magistrate Judge Kevin Nathaniel Fox, recommending that the Court grant Brown's motion, deny the Commissioner's motion, and remand the case to the Commissioner for reconsideration. Dkt. 19 (the “Report”).

For the reasons that follow, the Court declines to adopt the Report; instead, the Court denies Brown's motion for judgment on the pleadings, and grants the Commissioner's motion.

I. Background¹

Brown was born in 1958 and holds a Bachelor of Science degree in computer science. Between August 2007 and January 2009, he worked as an administrative assistant and the director of operations for a not-for-profit organization. In January 2009, Brown was discharged from his job due to budgetary cuts. Brown would have continued working for the same organization had his position not been eliminated.

On May 13, 2009, Brown filed an application for disability insurance benefits, alleging that he had been disabled since January 6, 2009—i.e., since his discharge.

After the Social Security Administration denied Brown's application for benefits on September 14, 2009, Brown timely requested and was granted a hearing before an Administrative Law Judge (“ALJ”). The issue before the ALJ was whether Brown had been disabled under §§ 216(i) and 223(d) of the Social Security Act between January 6, 2009 and the date of the decision. On March 4, 2011, Brown testified at a hearing before the ALJ.

On April 6, 2011, the ALJ issued a decision denying Brown's request for disability insurance benefits. Employing the five-step evaluation process set out in 20 C.F.R. § 404.1520(a)(4), the ALJ found at step one that Brown was not engaged in substantial gainful activity and, at step two, that Brown suffered from two “severe” impairments—namely, osteoarthritis of the knees and obesity. However, the ALJ determined that Brown's mental impairments —i.e., mood disorder, depression, anxiety, and post-traumatic stress disorder —“considered singly and in combination,” were non-severe, because they caused only “mild” limitations in daily living, social functioning, concentration, persistence, or pace, and because Brown had experienced no “episodes of decompensation ... of extended duration.” Admin. Rec. at 15 (citing 20 C.F.R. § 404.1520a(d)(1) ). At step three, the ALJ found that Brown's two severe impairments did not meet or medically equal the specified criteria of any listed impairment, meaning that a finding of disability was not permitted at that step. The ALJ therefore undertook the assessment at step four, which “focuses on whether, despite a disability claimant's severe impairments, the claimant ‘possesses the residual functional capacity (“RFC”) to perform her past relevant work.’ ” Cichocki v. Astrue, 729 F.3d 172, 175 (2d Cir.2013) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996) ).

At step four, the ALJ determined that Brown, based on “careful consideration of the entire record,” possessed the RFC to “perform the full range of light work,” Admin. Rec. at 16, and that, in light of his RFC, Brown was capable “of performing past relevant work as [an] administrative assistant and [a] director of operations,”id. at 18. In so concluding, the ALJ referenced and applied the relevant regulation, which defined “light work” as:

[L]ifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

20 C.F.R. § 404.1567(b). The ALJ, however, did not explicitly analyze Brown's work-related abilities on a function-by-function basis.²

Given the ALJ's conclusion that Brown could perform light work, and that he could perform two of his past jobs, the ALJ held that Brown had not “been under a disability, as defined in the Social Security Act, from January 6, 2009 through the date of this decision.” Admin. Rec. at 19. On July 23, 2012, the Appeals Council denied Brown's request for review of the ALJ's decision, making the ALJ's decision the Commissioner's final decision.

On September 20, 2012, Brown commenced this action. See Dkt. 1 (“Complaint”). The Complaint challenged the decision to deny Brown's disability claim on two grounds. First, Brown contends that the ALJ did not follow the “treating physician” rule, because he failed: (1) to give the assessment of Brown's treating physician, Dr. J. Toskes, the “controlling weight” it was due; and (2) to give significant weight to the evidence offered by Mr. Julius Nwosu, a physician's assistant (“PA”) who treated Brown. Second, Brown contends that the ALJ failed to provide a detailed analysis of Brown's RFC, in that the ALJ did not expressly assess how long Brown can sit, stand, or walk, or how much he can carry. Brown also asserts that the ALJ wrongly failed to consider Brown's psychiatric impairments when assessing his RFC.

On October 1, 2012, the Court referred the case to Magistrate Judge Fox. Dkt. 2. On February 4, 2013, the Commissioner answered. Dkt. 7. On April 5, 2013, Brown filed a motion for judgment on the pleadings, Dkt. 9, and a supporting memorandum of law, Dkt. 10 (“Pet. Br.”). On July 23, 2013, the Commissioner filed a cross-motion for judgment on the pleadings, Dkt. 15, and a supporting memorandum of law, Dkt. 17 (“Resp. Br.”).

On January 10, 2014, Magistrate Judge Fox issued a Report and Recommendation on the parties' cross-motions for judgment on the pleadings. See Report. As to Brown's first challenge, Judge Fox concluded that there was no merit to the claim that Dr. Toskes was Brown's treating physician or that PA Nwosu's opinion was entitled to significant weight. See Report at 17–18. As to Brown's second challenge, however, Judge Fox concluded that the ALJ had “failed to include a function-by-function assessment of Brown's physical and mental capacities in assessing Brown's [RFC],” or a “narrative discussion of Brown's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis.” Id. at 19. Judge Fox held that these omissions by the ALJ made it impossible “to ascertain how the ALJ made his finding, at step four of the sequential analysis, that Brown can perform the full range of light work and that he is capable of performing past relevant work.”Id. Accordingly, Judge Fox recommended that the Court grant Brown's motion, deny the Commissioner's cross-motion, and remand this case to the Commissioner for reconsideration of step four of the sequential analysis. Id.

II. Discussion

A. Legal Standard for Review of the Report

In reviewing a Report and Recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When specific objections are made, “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3) ; United States v. Male Juvenile,

121 F.3d 34, 38 (2d Cir.1997). However, when the objections simply reiterate previous arguments or make only conclusory statements, the Court should review the report for clear error. See Genao v. United States, No. 08 Civ. 9313(RO), 2011 WL 924202, at *1 (S.D.N.Y. Mar. 16, 2011) ; Kirk v. Burge, 646 F.Supp.2d 534, 539 (S.D.N.Y.2009) (collecting cases).

B. The Commissioner's Objections to the Report

On February 13, 2014, the Commissioner submitted objections to the Report. Dkt. 22 (“Resp. Obj.”). The Commissioner's primary objection is that the Report is inconsistent with the Second Circuit's recent decision in Cichocki, 729 F.3d 172, which was decided after the briefs in this case were submitted.³ Cichocki held, contrary to the approach taken in the Report, that an ALJ's failure to conduct a function-by-function analysis at step four of the sequential test is not a per se error requiring remand. See id. at 177 (“We decline to adopt a per se rule.”). Instead, the Second Circuit held that:

The relevant inquiry is whether the ALJ applied the correct legal standards and whether the ALJ's determination is supported by substantial evidence. Where an ALJ's analysis at Step Four regarding a claimant's functional limitations and restrictions affords an adequate basis for meaningful judicial review, applies the proper legal standards, and is supported by substantial evidence such that additional analysis would be unnecessary or superfluous, we agree with our sister Circuits that remand is not necessary merely because an explicit function-by-function analysis was not performed.

Id. “Remand may be appropriate, however, where an ALJ fails to

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