Pantoja Santiago v. Commissioner of Social Security

Filing 32

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION for 22 Motion for Judgment on the Pleadings filed by Teresa Pantoja Santiago, 26 Motion for Judgment on the Pleadings filed by Commissioner of Social Security, 31 Report and Recomme ndations. The Court has thus reviewed the Report for clear error and finds none. The Court agrees completely with Judge Moses's thoughtful and well-reasoned Report and hereby adopts its reasoning by reference. Accordingly it is hereby ordered t hat Plaintiff's motion for judgment on the pleadings is GRANTED, and the case is REMANDED to the Commissioner for further proceedings consistent with the Report. Further, the Commissioner's cross-motion for judgment on the pleadings is DENIED. The Clerk of Court is directed to terminate the motions at docket entries 22 and 26, and close this case. SO ORDERED. (Signed by Judge Katherine Polk Failla on 8/13/2019) (rro) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TERESA PANTOJA SANTIAGO,
Plaintiff,
-v.COMMISSIONER OF SOCIAL
SECURITY,

18 Civ. 1226 (KPF)
OPINION AND ORDER
ADOPTING REPORT AND
RECOMMENDATION

Defendant.
KATHERINE POLK FAILLA, District Judge:
Pending before the Court is the July 23, 2019 Report and
Recommendation from United States Magistrate Judge Barbara Moses (the
“Report”), addressing Plaintiff Teresa Pantoja Santiago’s complaint for judicial
review of the decision of the Commissioner of Social Security (the
“Commissioner”) denying Santiago’s application for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). Judge Moses
recommends that Santiago’s motion for judgment on the pleadings be granted,
the Commissioner’s cross-motion be denied, and the case be remanded to the
Commissioner for further proceedings.
The Court has examined the Report and notes that no party has objected
within the fourteen-day period from its service, as provided by 28 U.S.C.
§ 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. For the
reasons set forth below, the Court finds no error in the Report and adopts it in
its entirety.

BACKGROUND
This summary draws its facts from the detailed recitation in the Report.
(See Report 1-26). On June 2, 2014, Plaintiff filed an application for DIB and
SSI, alleging that she had been disabled since March 31, 2013, due to
depression, anxiety, and arthritis. (Id. at 1). Plaintiff’s application was denied
on August 7, 2014. (Id.). She requested and was granted a hearing on
March 16, 2016, and November 22, 2016, before Administrative Law Judge
Seth I. Grossman. (Id.). On February 15, 2017, ALJ Grossman issued a
written opinion determining that Plaintiff was not disabled within the meaning
of the Social Security Act as defined in 42 U.S.C. § 1382c(a), and was not
entitled to DIB or SSI. (Id. at 1-2). On December 12, 2017, the Appeals
Council denied Plaintiff’s request for review. (Id.).
Plaintiff filed this action on February 12, 2018, seeking judicial review of
the Commissioner’s determination. (Dkt. #1). Plaintiff moved for judgment on
the pleadings on October 22, 2018. (Dkt. #22, 23). The Commissioner filed a
cross-motion for judgment on the pleadings on December 21, 2018. (Dkt. #26,
27). Judge Moses’s Report was issued and mailed to Plaintiff on July 23, 2019.
(Dkt. #31). Objections were due on or before August 6, 2019. (Id.). Neither
party has objected to the Report.
Judge Moses recommended that this Court grant Plaintiff’s motion for
judgment on the pleadings, deny the Commissioner’s motion, and remand the
matter to the Commissioner for further proceedings. (Report 48). Judge Moses
found, first, that ALJ Grossman did not err in discounting the opinion of Dr.
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Eng Kock Chan Tan, because Dr. Tan’s opinion was not entitled to controlling
weight and was inconsistent with Plaintiff’s treatment notes and other evidence
in the record. (Id. at 29-34). Next, Judge Moses determined that ALJ
Grossman’s analysis of Plaintiff’s mental residual functional capacity contained
internal inconsistencies, and that the resulting determination was not
supported by substantial evidence. (Id. at 34-41). Finally, Judge Moses found
that ALJ Grossman erred in determining that other work existed that Plaintiff
was capable of doing, because there was insufficient evidence in the record to
suggest that Plaintiff could perform a home companion job.
Judge Moses recommended that the action be remanded to the
Commissioner for further proceedings, and specifically found that, on remand:
(i)

The ALJ should not ask any medical source, including
a testifying medical expert, to “decide [plaintiff’s] RFC,”
such as by testifying to the conclusion that she is
capable of working at a specific exertional level, or to
opine as to whether Plaintiff can perform a particular
job.

(ii)

The ALJ should formulate an intelligible RFC,
supported by substantial evidence in the record, that
provides a function by function assessment of Plaintiff’s
physical and mental capacities.

(iii)

If the ALJ once again determines that Plaintiff is subject
to a significant nonexertional limitation, he must call a
vocational expert, and should put a complete
hypothetical to that expert that incorporates all of
Plaintiff’s impairments.

(iv)

The Appeals Counsel should consider whether, in light
of the errors described above, this matter should be
assigned to a different ALJ for any further hearing.

(Report 48).
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DISCUSSION
A court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). A court may
also accept those portions of a report to which no specific, written objection is
made, as long as the factual and legal bases supporting the findings are not
clearly erroneous. See Ramirez v. United States, 898 F. Supp. 2d 659, 663
(S.D.N.Y. 2012) (citation omitted). A magistrate judge’s decision is clearly
erroneous only if the district court is “‘left with the definite and firm conviction
that a mistake has been committed.’” Easley v. Cromartie, 532 U.S. 234, 242
(2001) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
“A party’s failure to object to a report and recommendation, after receiving clear
notice of the consequences of such a failure, operates as a waiver of the party’s
right both to object to the report and recommendation and to obtain appellate
review.” Grady v. Conway, No. 11 Civ. 7277 (KPF) (FM), 2015 WL 5008463, at
*3 (S.D.N.Y. Aug. 24, 2015) (citing Frank v. Johnson, 968 F.2d 298, 300 (2d
Cir. 1992)).
Because the Commissioner has not filed an objection, he has waived his
right to object and to obtain appellate review. Even so, the Court has reviewed
the Report and finds that its reasoning is sound and it is grounded in fact and
law. Accordingly, the Court finds no clear error and adopts the Report in its
entirety.

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CONCLUSION
The Court has thus reviewed the Report for clear error and finds none.
The Court agrees completely with Judge Moses’s thoughtful and well-reasoned
Report and hereby adopts its reasoning by reference. Accordingly it is hereby
ordered that Plaintiff’s motion for judgment on the pleadings is GRANTED, and
the case is REMANDED to the Commissioner for further proceedings consistent
with the Report. Further, the Commissioner’s cross-motion for judgment on
the pleadings is DENIED.
The Clerk of Court is directed to terminate the motions at docket entries
22 and 26, and close this case.
SO ORDERED.
Dated: August 13, 2019
New York, New York
KATHERINE POLK FAILLA
United States District Judge

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