Brown v. Colvin et al
MEMORANDUM DECISION AND ORDER. Having adopted the Report in full, Defendant's motion for judgment on the pleadings is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 12. So ordered. Re 20 Report and Recommendation, 12 Motion for Judgment on the Pleadings filed by Carolyn W. Colvin. (Signed by Judge George B. Daniels on 1/11/2017) (rjm)
UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BRUCE STANLEY BROWN,
COMMISSIONER OF SOCIAL SECURITY,
16 Civ. 81 (GBD) (SN)
GEORGE B. DANIELS, United States District Judge:
Pro se Plaintiff Bruce Stanley Brown seeks review by this Court of the Commissioner of
Social Security's ("Commissioner") final decision denying his application for disability
insurance benefits ("DIB"). (Comp!., (ECF No. 2).)
Defendant moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.
This matter was referred to Magistrate Judge Sarah Netbum on
January 19, 2016. (ECF No. 5.)
Before this Court is Magistrate Judge Netbum's Report and Recommendation ("Report,"
ECF No. 20), recommending that Defendant's motion, (ECF No. 12), for judgment on the
pleadings be granted. 1 (Report at 1.) This Court fully adopts those recommendations.
I. LEGAL ST AND ARD
This Court may accept, reject, or modify, in whole or in part, the findings set forth in the
Report. 28 U.S.C. § 636(b)(l)(C). When no party files objections to a Report, the Court may
adopt the Report if "there is no clear error on the face of the record." Adee Motor Cars, LLC v.
Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005) (quoting Nelson v. Smith, 618 F. Supp. 1186,
The relevant procedural and factual background is set forth in greater detail in the Report, and is
incorporated herein. (See Report at 1-4.)
1189 (S.D.N.Y. 1985)). When there are objections to the Report, the Court must make a de nova
determination of those portions of the Report to which objections are made. Id.; see also Rivera
v. Barnhart, 423 F. Supp. 2d 271, 273 (S.D.N.Y. 2006). This Court need not conduct a de nova
hearing on the matter. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980). Rather, it is
sufficient that the Court "arrive at its own, independent conclusion" regarding those portions of
the Report to which objections were made.
Nelson v. Smith, 618 F. Supp. 1186, 1189-90
(S.D.N.Y. 1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983)). However, if
a party "simply reiterates [his] original arguments, the Court reviews the report and
recommendation only for clear error."
Silva v. Peninsula Hotel, 509 F. Supp. 2d 364, 366
Magistrate Judge Netburn advised the parties that failure to file timely objections to the
Report would constitute a waiver of those objections on appeal.
(Report at 11 ); see also 28
U.S.C. § 636(b)(l)(C); Fed. R. Civ. P. 72(b). Plaintiff filed timely objections to the Report.
(Pl.'s Obj., ECF No. 22.) Prose submissions are read liberally and interpreted to "raise the
strongest arguments that they suggest." Burgos v. Hopkins, 14 F. 3d 787, 790 (2d Cir. 1994)
(internal citation omitted).
Judgment on the pleadings is appropriate when the material facts are undisputed and a
party is entitled to judgment as a matter of law based on the contents of the pleadings. See, e.g.,
Sellers v. MC. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Carballo ex rel. Cortes v.
Apfel, 34 F. Supp. 2d 208, 213-14 (S.D.N.Y. 1999).
42 U.S.C. § 405(g) provides that "[t]he findings of the Commissioner ... as to any fact, if
supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g); see Veino v.
Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). The term "substantial" does not require that the
evidence be overwhelming, but it must be "more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
A district court does not review the Commissioner's decision de nova.
Barnhart, 362 F.3d 28, 31 (2d Cir. 2004). Rather, the court's inquiry is limited to ensuring that
the Commissioner applied the correct legal standard and that his decision is supported by
substantial evidence. See Hickson v. Astrue, No. 09 Civ. 2049 (DLI) (JMA), 2011 WL 1099484,
at *2 (E.D.N.Y. Mar. 22, 2011). When the Commissioner's determination is supported by
substantial evidence, the decision must be upheld, "even if there also is substantial evidence for
the plaintiffs position." Morillo v. Apfel, 150 F. Supp. 2d 540, 545 (S.D.N.Y. 2001). That is, a
district court may only set aside the ALJ' s factual findings "if a reasonable factfinder would have
had to conclude otherwise." Brault v. Soc. Sec. Admin. Comm 'r, 683 F.3d 443, 448 (2d Cir.
2012) (emphasis omitted) (quoting Warren v. Shala/a, 29 F.3d 1287, 1289 (8th Cir. 1994)).
II. THE RECORD PROVIDES SUBSTANTIAL EVIDENCE FOR THE ALJ'S
CONCLUSION THAT PLAINTIFF WAS INELIGIBLE FOR DIB
The Report properly found that the record supported ALJ Miriam Shire's April 25, 2014
determination that Plaintiff was ineligible for DIB on the grounds that 1) his earnings record did
not show that he had enough of quarters of coverage (twenty quarters out of a forty-quarter
period), and 2) his United States Postal Service employment did not require him to pay the
Federal Insurance Contributions Act ("FICA") tax, which funds the Social Security system.
(Report, at 3.)
Plaintiff contends that Magistrate Judge Netburn erred in understanding the appealed
application was for DIB, when in fact it was for "Separation Rights and Benefits" under
Subsection 560 of the U.S. Postal Service Employee and Labor Relations Manual ("ELM").
(Pl.'s Obj., at 1.)
Plaintiff's objection has no basis in fact or law, and instead reiterates
arguments made before Magistrate Judge Netburn and in his Complaint. (Compare Pl.'s Obj.
with Pl. 's Opp'n, ECF No. 19 and Compl., at 8.) This Court therefore reviews the Report for
clear error. See Silva, 509 F. Supp. 2d at 366.
Upon review of the ELM, Subsection 560 explains the Civil Service Retirement System
("CSRS") of the U.S. Postal Service, under which covered employees, such as Plaintiff, did not
pay Social Security retirement, survivor, or disability taxes.
See Chapter 561, ELM,
http://about.usps.com/manuals/ elm/html/elmc5 _ 041.htm. (last visited December 3 1, 2016));
(Report at 7).
In 1984, as the Report correctly explained, the Federal Employees Retirement
System (FERS) became the mechanism through which federal employees, such as Plaintiff, paid
wages into Social Security. (Report at 7.)
While some employees could have switched from CSRS to FERS, and Plaintiff may have
been one of those employees, Plaintiff was unable to provide any documentation from his years
of employment at USPS that he paid the required FICA taxes prior to 1984. (See id., at 8.)
Neither did Plaintiff provide this Court with a record as to his possible USPS pension. (Id. at 9.)
As the Government correctly stated, "Plaintiff's complaint concerning his eligibility and
entitlement to DIB is premised on his mistaken belief that the earnings he received while
employed by the USPS should have been counted in calculating his quarters of coverage for
entitlement and eligibility for DIB." (Def. 's Mem. in Supp. of Mot. for J. on the Pleadings
("Mem."), ECF No. 13, at 13.)
Magistrate Judge Netburn therefore properly recommended that Defendant's motion for
judgment on the pleadings be granted, as Plaintiffs federal employment did not entitle him to
coverage under this particular government program. (Report, at 10-11. )2
Having found no clear error, this Court accepts these recommendations in full.
Having adopted the Report in full, Defendant's motion for judgment on the pleadings is
The Clerk of Court is directed to close the motion at ECF No. 12.
Dated: New York, New York
January 10, 2017
In light of Plaintiff's improper constitutional claims of racial discrimination by non-parties to this action, (Report,
at l O), and complaints that the Queens County Bar Association failed to provide Plaintiff with representation in this
action, (id.), Magistrate Judge Netbum thoughtfully referred Plaintiff to the New York County Lawyers Association
(NYC LA) or the Pro Se Legal clinic of this District at 40 Foley Square, New York, New York. (Id. at 10-11.) This
Court again urges Plaintiff to seek out proper legal advice through these services.
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