UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-22878-CIV-ALTONAGA/Goodman

ELSA MARTINEZ,

Plaintiff,

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

_____________________________/

ORDER

On July 13, 2020, Plaintiff, Elsa Martinez, filed a Complaint [ECF No. 1] seeking review 

of Defendant’s decision denying her disability benefits under the Social Security Act. The 

matter was referred to Magistrate Judge Jonathan Goodman for a report and recommendation on 

dispositive matters. (See Clerk’s Notice [ECF No. 2]). Thereafter, Plaintiff filed a Motion for 

Summary Judgment (“Plaintiff’s Motion”) [ECF No. 19]; Defendant, the Commissioner of the 

Social Security Administration, filed a Motion for Summary Judgment (“Defendant’s Motion”) 

[ECF No. 20]; and Plaintiff filed a Response to Defendant’s Motion for Summary Judgment 

(“Plaintiff’s Response”) [ECF No. 22].

On August 11, 2021, the Magistrate Judge entered his Report and Recommendations

(“Report”) [ECF No. 23], recommending the Court grant Defendant’s Motion, deny Plaintiff’s 

Motion, and enter final judgment in favor of Defendant. On August 24, 2021, Plaintiff timely 

filed her Objections [ECF No. 24] to the Report, to which Defendant filed a Response [ECF No. 

25]. For the following reasons, the Report is affirmed and adopted.

In Plaintiff’s administrative proceedings, the ALJ denied Plaintiff’s claim for benefits 

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after following the requisite five-step evaluation process for social security claims. (See Admin.

R. [ECF No. 16] 28–41).

1 As relevant here, when the ALJ determined Plaintiff’s residual 

functional capacity (“RFC”), she found Plaintiff “will be off task not to exceed 10% of the day.” 

(Id. 33). In concluding Plaintiff is capable of work that exists in significant numbers in the 

national economy, the ALJ relied on the testimony of a vocational expert (“VE”). (See id. 34). 

The VE stated at Plaintiff’s administrative hearing that an employer of unskilled workers would 

“generally anticipate[]” a worker may be absent from work 6 to 10 days a year. (Id. 77–78

(alteration added)).

In her Motion for Summary Judgment and her Response, Plaintiff advances a novel 

theory: an off-task finding of 10% a day should be aggregated over the course of a year and then 

should be equated as a day’s absence for each 8-hour increment. (See Pl.’s Mot. 5–6; Pl.’s Resp.

1–3; see also Report 6). According to Plaintiff’s creative theory, “being off-task up to [10%] of 

a workday is akin to missing 0.8 hours a day or a total of [4] hours a week. Assuming there are 

at least 50 weeks of work in a year, that adds up quickly to 200 hours a year, or the equivalent of 

25 eight-hour workdays, which is over [800%] greater than the average 3.0 annual absences 

reported by the [Bureau of Labor Statistics (“BLS”)].” (Pl.’s Resp. 2 (alterations added)). 

Moreover, because the VE testified an employer would generally anticipate a worker being 

absent 6 to 10 days a year, Plaintiff argues there is an apparent conflict between this testimony 

and the ALJ’s finding that Plaintiff could find a job despite being off task 10% of the time. (See 

id. 4). Plaintiff contends “remand is warranted to obtain clarification on, or further support for, 

the VE’s wildly inconsistent testimony in light of the ALJ’s own limitation regarding time off 

task.” (Id.).

1 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the 

headers of all court filings. 

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Contrary to Plaintiff’s bold assertion, there is nothing “wildly inconsistent” about the 

VE’s testimony or how the ALJ considered the off-task finding. 

When a magistrate judge’s “disposition” has been properly objected to, district courts 

must review the disposition de novo. Fed. R. Civ. P. 72(b)(3). A proper objection “identifie[s] 

specific findings set forth in the R & R and articulate[s] a legal ground for objection.” 

Leatherwood v. Anna’s Linens Co., 384 F. App’x 853, 857 (11th Cir. 2010) (alterations added). 

In his Report, the Magistrate Judge meticulously analyzed Plaintiff’s argument and made

several findings for why it is meritless, including: (1) Plaintiff does not provide any case 

supporting her theory in her Motion for Summary Judgment or Response, whereas Defendant 

“includes citations to cases where courts in this [D]istrict have affirmed the ALJ’s decision with 

similar RFCs” (Report 8 (alteration added)); (2) the ALJ only had an affirmative duty to identify 

apparent conflicts between the VE’s testimony and the Dictionary of Occupational Titles 

(“DOT”) — not information from the BLS (see id. 9–11); (3) even when considering the BLS

statistics, Plaintiff’s theory is mathematically incorrect because the BLS only considers an 

employee “absent” when he or she works less than 35 hours, so if Plaintiff is off task for 10% of 

the 40-hour workweek Plaintiff assumes, then she will still work 36 hours and will thus not

actually be “absent” (see id. 11–14); (4) Plaintiff “cannot establish the [BLS] shares her view on 

the length of the workweek, the definition of an absence, or what non-working activities are 

included in an absence” (id. 14 (alterations added)); (5) “[t]he law in this [C]ircuit does not

require an ALJ [] to consider the type of data by which [Plaintiff] seeks to undermine the ALJ’s 

ruling” (id. (alterations added)); and (6) “courts in this [C]ircuit regularly affirm ALJ decisions 

that a claimant is not disabled even when the claimant may be off task throughout the day” (id.

14–15 (alteration added; collecting cases)).

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Plaintiff only properly objects to the Magistrate Judge’s first finding — that Plaintiff did 

not provide any legal authority to support her theory, while Defendant provided cases that 

undermined it. (See Obj. 1–2). 

The rest of the analysis in Plaintiff’s Objections — which is, in fact, the bulk of the 

analysis — is copied verbatim from her Response. (Compare Obj. 2–5, with Pl.’s Resp. 1–4). In 

this portion of her analysis, Plaintiff does not even reference the Magistrate Judge, his Report, or 

any of his findings. This is, of course, because the analysis is copied and pasted from her 

Response, which was written before the Report. Because these “objections” were clearly drafted 

prior to the Report, they do not (and cannot) specifically identify the portions of the Report to 

which Plaintiff objects — much less articulate legal grounds for objections — and are therefore 

improper. See Leatherwood, 384 F. App’x at 857. Plaintiff thus ignores most of the analysis 

contained in the Report, which the Court finds is well-reasoned and free of clear error. In fact, 

the Magistrate Judge’s ultimate conclusion is well-supported even without the one finding 

Plaintiff objects to. 

Turning to Plaintiff’s properly stated objection, in his Report, the Magistrate Judge states:

[Plaintiff] does not cite a single supporting case in the argument section of her 

[Motion for Summary Judgment], nor does she cite a single case in the entirety of 

her [R]esponse to [Defendant’s Motion]. In contrast, [Defendant’s Motion]

includes citations to cases where courts in this [D]istrict have affirmed the ALJ’s 

decision with similar RFCs.

(Report 8 (alterations added)). Plaintiff admits she “is raising what appears to be a novel 

challenge and did not provide an example of a court decision finding a ‘[10%] off-task’

limitation was work-preclusive[.]” (Obj. 2 (alterations added)). Instead, Plaintiff argues 

Defendant has not provided any cases that support its position because, in the two cases 

Defendant cited, the claimant did not specifically challenge the 10% off-task finding. (See id.). 

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According to Plaintiff, “[b]oth Plaintiff and Defendant, then, are in the same position — without 

citation to a case specifically affirming or denying a challenge to whether a ‘[10%] off-task’

limitation is itself work-preclusive. Thus, the Magistrate’s adoption of [Defendant’s] suggestion 

that there are, in fact, cases that support [Defendant’s] position should be disregarded.” (Id.

(alterations added)).

Plaintiff misses the point. Defendant cited Buckwalter v. Saul, No. 18-14506-Civ, 2019 

WL 4277487, at *12 (S.D. Fla. Sept. 10, 2019), aff’d sub nom. Buckwalter v. Acting 

Commissioner of Social Security, 5 F.4th 1315 (11th Cir. 2021), and Anderson v. Saul, No. 8:18-

cv-2780, 2020 WL 1285036, at *1 (M.D. Fla. Mar. 16, 2020), as examples of the many instances 

where an ALJ included a 10% off-task finding in a claimant’s RFC and neither the parties nor 

the reviewing court found any issue with it. (See Def.’s Mot. 7 n.3). The point is that it is 

routine practice to include one of these findings in an RFC. Indeed, the Magistrate Judge 

provided additional examples of courts affirming an ALJ’s decision despite including a similar

off-task finding in a claimant’s RFC. (See Report 14–15 (citing Olney v. Comm’r of Soc. Sec., 

No. 2:17-cv-349, 2018 WL 4760799, at *5 (M.D. Fla. July 30, 2018) (10% off-task finding);

Abreu v. Berryhill, No. 18-21029-Civ, 2019 WL 3216037, at *2 (S.D. Fla. July 17, 2019) (offtask finding of five-minutes per hour); Johnson v. Berryhill, No. 1:17cv248, 2018 WL 3423058, 

at *3 (N.D. Fla. June 28, 2018) (10% off-task finding); Edge v. Colvin, No. 5:13-cv-01476, 2014 

WL 4494213, at *8 (N.D. Ala. Sept. 10, 2014) (10% off-task finding)). These cases should not 

be “disregarded[,]” as Plaintiff argues. (Obj. 2 (alteration added)). Quite the contrary — these 

cases are persuasive authorities that are entitled to great weight compared to Plaintiff’s complete 

lack of legal authority. 

Other claimants likely have not raised a challenge like Plaintiff’s because — for the 

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numerous reasons the Magistrate Judge outlines in his Report and that Plaintiff ignores 

entirely — it is meritless. 

In short, the undersigned fully agrees with the analysis and recommendations in the 

Report. Accordingly, it is

ORDERED AND ADJUDGED that the Report and Recommendation [ECF No. 23] is 

AFFIRMED AND ADOPTED as follows:

1. Plaintiff’s Motion for Summary Judgment [ECF No. 19] is DENIED. 

2. Defendant’s Motion for Summary Judgment [ECF No. 20] is GRANTED. 

3. Final judgment shall issue separately. 

DONE AND ORDERED in Miami, Florida, this 13th day of September, 2021.

________________________________________

CECILIA M. ALTONAGA

CHIEF UNITED STATES DISTRICT JUDGE

cc: Magistrate Judge Jonathan Goodman

counsel of record

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