Browne v. Commissioner of Social Security

131 F. Supp. 3d 89, 2015 U.S. Dist. LEXIS 124391, 2015 WL 5449911
CourtDistrict Court, S.D. New York
DecidedSeptember 16, 2015
DocketNo. 14 Civ.1952(GWG)
StatusPublished
Cited by13 cases

This text of 131 F. Supp. 3d 89 (Browne v. Commissioner of Social Security) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Browne v. Commissioner of Social Security, 131 F. Supp. 3d 89, 2015 U.S. Dist. LEXIS 124391, 2015 WL 5449911 (S.D.N.Y. 2015).

Opinion

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Plaintiff Kenneth Owen Browne brings this action under 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of.'Social Security (“Commissioner”) denying his claim for disability insurance benefits and supplemental security income under the Social Security Act. Browne moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), and the-Commissioner cross-moved for judgment on the pleadings.1 The parties consented to having this matter decided by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the. Commissioner’s motion is granted and Browne’s motion is denied.

I. BACKGROUND

A. Brovme’s Claim fory Benefits and ■ ■ Procedural History

Browne filed applications for Social Security disability insurance benefits and supplemental security income on April 12, 2011, alleging disability as of December 30, 2007. See Administrative Record, filed Sept. 16, 2014 (Docket # 12) (“R.”), at 172-82. Browne was previously employed as a baggage handler at an airport in the Virgin Islands. R. 34-35. He stopped working in &Ó08, when he was fired. R. 35.

The Social Security Administration denied Browne’s applications on June 29, [92]*922011. R. 66-71. On July 6, 2011, Browne requested a hearing before an Administrative Law Judge (“ALJ”). R. 72-73. A hearing before an ALJ was held on December 19, 2012. R. 29-51. On January 2, 2013, the ALJ issued a decision finding that Browne was not disabled through the date of the decision. R. 17. The Appeals Council denied Browne’s- request for review on January 10, 2014, making the ALJ’s determination the Commissioner’s final decision. R: 1-4.

B. The Administrative Record

Browne and the Commissioner have each provided a recitation, of the relevant medical evidence contained in the administrative record., See PL. Mot. at 2 — 9; Pl. Mem. at 1-9; Def. Mem. at 2-7. . The Court adopts the parties’ discussions of the medical evidence, which do not conflict in any material way, as accurate and complete for purposes of the issues raised in this suit. We discuss the portions of the record pertinent to the adjudication of this case in section III below.

C. The Hearing Before the ALJ

A hearing before ALJ James Kearns was held on December 19, 2012. See R. 29-51. Browne was represented at the hearing by an attorney. R. 29. Browne testified that he was bom on September 13, 1959, is 5'4", and weighs 179 lbs. R. 32-33. He was 48 years old on his alleged onset date. See R. 205. He currently lives in an apartment with his sister in the Bronx, R. 33, 209, and he has a ninth-grade education, R. 34. The last time Browne worked was in 2008, working as a baggage handler at an airport in the Virgin Islands. R. 34-35. He stopped working because he was fired, and he subsequently traveled to New York. R. 35.

Browne testified that he cannot work because -he is “suffering with [his] back and [his] knees and [his] hands. And [he] also get[s] dizzy spell[s].” R. 38. With respect to his back, he suffers from “arthritis into [his] hips,” which causes his left leg to get numb. Id. As for his hands, Browne testified that he cannot grip with either hand because he does not have the strength, and that his right hand is worse than his left. R. 38-39.

Browne sees Dr. Regina Gurevich at Doctors Unlimited in the Bronx every two weeks. R. 39. He takes five different kinds of medications per day, including one for dizziness, one for numbness, and one for pain. R. 39-30. Browne reported that the medications cause nausea and drowsiness, and help only “[s]ometimes.” R. 40-41.

The ALJ asked Browne about his activities on a typical day. R. 41. Browne testified that he will just stay at home and watch TV or go to sleep. Id. He has trouble getting out of bed in the morning because his whole body gets stiff. Id Once he is out of bed, he will sit for a while, take his medication, and then watch TV. Id. He does not go out of the house regularly because he cannot walk too much and he will have to stop and pause. Id. He also has problems with his knees when going up and down stairs, and he tries to avoid putting pressure on them. Id. Browne testified that his sister does all of the housework, such as laundry, and goes grocery shopping. R. 42. He also testified that he has trouble remembering things. Id.

Browne testified that the most he can lift is about five pounds because of his wrist and that he can walk for half of a block. R. 43. He also stated that he can sit for approximately 15 minutes and stand for approximately 10 minutes before he starts to have problems. R. 43-44.

. The ALJ asked Browne to testify as to his asserted learning disability. R. 44. Browne stated that he straggles with reading and writing, and that he went through [93]*93special education. Id} When filling out applications, he is only able to write his name and address. R. 45. His sister often helps him fill out forms. Id.

Vocational expert 'Yaakov Taitz also testified át the hearing. R. 45-49; see R. 154. Taitz testified that Browne’s work history was as a baggage handler, Dictionary of Occupational Titles (“DOT”) code 912.663-010, which is a “heavy” exertion position with a specific vocational preparation (“SVP”) of 4. R. 46. He testified that a hypothetical individual with this work history, limited to the “light exertional level,” who could only do simple and repetitive tasks and could frequently,; but not constantly, handle objects would not be able to do that job. R. 46. Taitz testified that the same' hypothetical individual would be able to perform the following jobs bagger, DOT code 920.687-018, which is a light exertion job with an SVP of 1 arid has 1,600 jobs in the local economy and 66.000 jobs in the national economy; cleaner, DOT code 323.687014, which is a light exertion job with an SVP of 2 and has 8.000 jobs in the local economy and 877,000 jobs in the national economy; courier/deliverer, DOT code 230.663-010, which is a light exertion job with an SVP of 2 arid has 7,100 jobs in the local economy and 83,000 jobs in the national economy; and deli cutter, DOT code 316.687-018, which has 6.000 jobs in the local economy and 775,000 in the national economy.2 R. 47-48; He also stated that he- could also “give [the ALJ] fast food worker,” but did not testify any further as to that job. R. 48. Taitz testified that if a person was absent for three or more days per month or off task over 15% of the time, “he couldn’t do those jobs.” R. 49.

D. The ALJ’s Decision

On January 2, 2013, the ALJ issued a decision finding, that, Browne was not disabled from December 30, 2007 through January 2, 2013, the date of the decision. R. 6-17. The ALJ found that Browne has not engaged in substantial gainful activity since December 30, 2007, the alleged onset date of his disability. R. 11.

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131 F. Supp. 3d 89, 2015 U.S. Dist. LEXIS 124391, 2015 WL 5449911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/browne-v-commissioner-of-social-security-nysd-2015.