Santana v. Commissioner Social Security

Filing 16

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION for 15 Report and Recommendation. See Opinion and Order for further details. Judgment will be entered accordingly. IT IS SO ORDERED. Signed by Judge Daniel R. Dominguez on 9/30/2011.(JAM)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ENIT D. SANTANA,
Plaintiff,

Civil No. 10-1714 (DRD)

MICHAEL J. ASTRUE, COMMISSIONER OF
THE SOCIAL SECURITY ADMINISTRATION,
Defendant.

OPINION AND ORDER
Pending before the Court is plaintiff Enit T. Santana’s (“Santana”) request for Social
Security benefits for the period of October 4, 2000 through December 31, 2005. See Docket
No. 1. She claims to be incapacitated due to cervical pain, musculoskeletal pain and nervous
disorder. The burden is on the plaintiff to prove that she is disabled within the meaning of the
Act. Rodríguez Pagan v. Secretary of Health and Human Services, 819 F.2d 1, 3 (1st Cir. 1987);
Reyes Robles v. Finch, 409 F.2d 84 (1st Cir. 1969). The claim must satisfy the requirements of
sections 216(i) and 233(d) of the Social Security Act, 42 U.S.C. §§ 416(i) and 423. Santana duly
filed a Memorandum of Law, Docket No. 9.

The Commissioner of the Social Security

Administration (“Commissioner”) duly answered the Complaint, and filed a Memorandum of
Law, Docket entries No. 5 and 11. The Commissioner requests that the decision issued by the
Administrative Law Judge (“ALJ”) be affirmed, as the ALJ denied Santana’s request on the
grounds that Santana was not disabled prior to December 31, 2005. The Court referred this
matter to the United States Magistrate Judge McGiverin (“Magistrate Judge”) for a report and
recommendation, Docket No. 12.

Standard of Review
The District Court may refer dispositive motions to a United States Magistrate Judge for
a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B) (1993); Rule 72(b) of the Federal
Rules of Civil Procedure (“Fed. R. Civ. P.”); Rule 72 of the Local Rules for the District of
Puerto Rico (“Local Rules”). See Mathews v. Weber, 423 U.S. 261 (1976). As a general rule, an
adversely affected party may contest the Magistrate Judge’s report and recommendation by
filing its objections within fourteen (14) days after being served a copy thereof. See Local
Rule 72; Fed.R.Civ.P. 72(b). Moreover, 28 U.S.C. § 636(b)(1), in its pertinent part, provides
that:
Within fourteen days of being served with a copy, any party may
serve and file written objections to such proposed findings and
recommendations as provided by rules of court. A judge of the
court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made. A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made
by the magistrate.
However, “[a]bsent objection by the plaintiffs, [a] district court ha[s] a right to assume
that [a party] agree[s] to the magistrate's recommendation.” Templeman v. Chris Craft Corp.,
770 F.2d 245, 247 (1st Cir. 1985), cert. denied, 474 U.S. 1021 (1985). Moreover, “[f]ailure to
raise objections to the Report and Recommendation waives that party’s right to review in the
district court and those claims not preserved by such objection are precluded on appeal.”
Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir. 1992). Thus, in order to accept the unopposed
Report and Recommendation, the Court needs only satisfy itself by ascertaining that there is no
"plain error" on the face of the record. See Douglass v. United Servs. Auto, Ass'n, 79 F.3d 1415,
1419 (5th Cir. 1996)(en banc)(extending the deferential "plain error" standard of review to the
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unobjected legal conclusions of a magistrate judge); Nettles v. Wainwright, 677 F.2d 404, 410
(5th Cir. 1982)(en banc)(appeal from district court's acceptance of unobjected findings of
magistrate judge reviewed for "plain error"); Nogueras-Cartagena v. United States,
172 F.Supp.2d 296, 305 (D.P.R. 2001) ("Court reviews [unopposed] Magistrate's Report and
Recommendation to ascertain whether or not the Magistrate's recommendation was clearly
erroneous")(adopting the Advisory Committee note regarding Fed.R.Civ.P 72(b)); Garcia v.
I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa. 1990)("when no objections are filed, the district court
need only review the record for plain error").
In the instant case, the Magistrate Judge issued a Report and Recommendation on
May 19, 2011. See Docket No. 15. The Magistrate Judge granted the parties fourteen (14) days
to object the Report and Recommendation, from its receipt. The record shows that, as of this
date, the Report and Recommendation stands unopposed.
Analysis
In the instant case, the Magistrate Judge recommended that Santana’s request for judicial
review be denied, as the ALJ determination, as well as the Commissioner’s decision on appeal
was based on substantial evidence. See Report and Recommendation, Docket No. 15. The
Magistrate Judge followed a five step sequential evaluation process to be applied in making a
final determination as to plaintiff’s being eligible to be determined disabled under the law.
Bowen v. Yuckert, 482 U.S. 136, 140-142 (1987). See Docket No. 15, p.p. 2-3. The critical
analysis involved a five step evaluation process, as provided in 20 C.F.R. § 404.1520. When
considering the fourth step, the ALJ considered the assessment of the Residual Functional
Components, RFC, and the past relevant work performed by Santana. Should Santana still be
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able to perform with the past relevant work, then the ALJ will find that Santana is not disabled
under 20 C.F.R. § 404.1520(e). The plaintiff must carry the burden of proving that she cannot
return to her past working conditions because of the disability. Santiago v. Secretary of Health
and Human Services, 944 F.2d 1, 5 (1st Cir. 1991). Once the disability is proved, then the
Commissioner must prove the existence of other jobs in the national economy that Santana can
perform. Ortiz v. Secretary of Health and Human Services, 890 F.2d 520, 524 (1st Cir. 1984).
The function of the reviewing court is limited to determining whether substantial
evidence supports that Santana was not disabled. Rodríguez Pagán v. Secretary of Health and
Human Services, 819 F.2d 1, 3 (1st Cir. 1987). The Magistrate Judge concluded that substantial
evidence supported that Santana was not disabled. The Court agrees and briefly explains.
The Administrative Law Judge Theodore W. Grippo rendered his decision on January 25,
2008 (Tr. 11-29). The decision determined that Santana was not disabled within the meaning of
the Act. The ALJ further found that Santana’s “back disorders, mild tendinosis of the right
shoulder, and affective disorders were severe impairments.” See Docket No. 15, p. 13. Further,
Santana’s “pain and migraine headaches were amenable to treatment and had been stabilized
with conservative treatment with oral medications, and that claimant [Santana] had shown
significant improvement form ongoing psychiatric treatment for a depressive disorder.” Id.
(Tr. 20). Further, the ALJ determined that Santana “was moderately restricted in daily living
activities, social functioning, and concentration, persistence, or pace, with no episodes of
decompensation.” Id. However, the ALJ determined that Santana “had the physical RFC to
perform all types of medium work except climbing . . . as [Santana] could lift/carry 50 pounds
occasionally and 25 pounds frequently; sit, stand, or walk for 6 hours in an 8-hour workday; had
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no limitation in pushing, pulling, handling, fingering, feeling, grasping, or pinching; had
diminished strength but full range of motion; and had no postural, visual, communicative, or
environmental limitations.” See Docket No. 15, p. 13. The ALJ further determined that Santana
“had the mental RFC to learn, understand, remember, and carry out simple but not detailed or
complex job instruction; to sustain attention, concentration, and pace during a regular workday
or workweek; to complete a normal workday and/or workweek without undue interruptions; to
respond appropriately to supervisors, coworkers, and usual work situations; and to deal with
work changes in a routine work setting.” See Docket No. 15, p. 14 (Tr. 20-21, 28).
The ALJ did not find that Santana’s “testimony about the symptoms’ intensity,
persistence, and limiting effects was not entirely credible.” See Docket No. 15, p. 14. Further,
the ALJ observed Santana’s “demeanor and behavior during the hearing and noted that his
observations were only one factor among many he relied on in reaching his conclusion about the
credibility of her testimony and her RFC.” Id. (Tr. 27).
The above conclusions of the ALJ were founded on the record based on the testimony,
medical records, and reports from Doctors Rivera, Arnau, Hernández, Bruguers, López and
Llona, the SIF reports, physician reports, such as, neurological evaluation (Dr. Hernández),
arthritis evaluation (Dr. Brugueras).

See Docket No. 15, p. 14. Further, the ALJ found

the VE’s testimony reliable as to the opinion that Santana “could do her prior work.” Id. Finally,
the ALJ did not “give controlling weight or deference to Dr. López’ opinion evidence because it
was disproportionate in severity to the preponderance of the record evidence . . .” Id.
The conclusion of the ALJ was that “the objective medical evidence of record did not
support claimant’s [Santana] allegations of severe, disabling pain in the cervical and lumbar
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regions with limitation of motion, hand pain, and associated numbness and lack of strength, as
the preponderance of medical evidence did not show diagnostic studies or lab findings to support
such allegations.” See Docket No. 15, p. 15. Moreover, the ALJ noted that Santana “had been
treated conservatively with oral medications and physical therapy, which evidently relieved her
symptoms, without requiring hospitalization, ER treatment, or surgery.” Id. (Tr. 28). The ALJ
also concluded that “the psychiatric evidence showed that claimant was not mentally
dysfunctional, as the preponderance of evidence describes her as alert, logical, coherent,
relevant, and mostly oriented, with mostly preserved cognitive functioning save for some
memory and concentration limitations.” Id. The ALJ also noted “that Santana’s treatment had
been conservative, without psychiatric hospitalization, and that she was able to care for her
personal needs and perform definite activities of daily living.” Id. “Based on this evidence, the
ALJ concluded that claimant’s depressive disorder was moderate and did not preclude her from
performing basic work activities, and that from the non-exertional standpoint, claimant retained
the ability to perform simple tasks.” Id. “The ALJ determined that at most, the evidence showed
that claimant’s depression imposed only moderate restriction on activities of daily living, social
functioning, and maintaining concentration, persistence, or pace.” Id.
Accordingly, the ALJ determined that “Santana was not disabled within the meaning of
the Act at any time from October 4, 2000, the alleged disability onset date, through
December 31, 2005, the date last insured.”1 See Docket No. 15, p. 15. Because Santana’s

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Santana contests that the ALJ should have provided more weight to the treating medical sources provided
by her over the non-treating sources. However, non-treating sources may be provided more weight in appropriate
circumstances. Rodríguez Pagán, 819 F.2d at 3; Lizotte v. Secretary of Health and Human Services, 654 F.2d 127,
130 (1st Cir. 1981).

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request was denied on May 20, 2010, the decision of the ALJ became the final decision of the
Commissioner. Id.
The Court not having received any objection to the Report and Recommendation finds
that the above determinations of fact and conclusions of law examined under the standard of
“plain error” are justified as they are based upon substantial evidence, as correctly found by the
Magistrate Judge in his Report and Recommendation. The facts stated herein are based on
medical reports, records, evaluations and reasonable exercise of credibility and weight of
testimony.2 In sum, the Court finds that the record contains sufficient substantive evidence in
support of the ALJ’s determination, and the Commissioner’s decision.
Conclusion
For the reasons set forth above, the Court hereby adopts the Report and Recommendation
issued by Magistrate Judge McGiverin, Docket No. 15, and finds that Santana was not disabled
during the period of October 4, 2000 through December 31, 2005, which warrants the dismissal
of the instant Complaint. Judgment will be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 30th day of September, 2011.
S/DANIEL R. DOMINGUEZ
Daniel R. Domínguez
United States District Judge

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The Court also agrees with the caveat of the Magistrate Judge McGiverin to the effect that “the evidence
may have justified a different conclusion, [but] “it is not this court’s duty to second guess the Commissioner’s
determination.” See Docket No. 15, p. 19. “Because substantial evidence supports the ALJ’s determination, the
Commissioner’s decision must be affirmed.” Id.

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