UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:20-cv-22874-KMM

DAMIOUN LAQUANN COLE, 

Plaintiff, 

v. 

KILOLO KIJAKAZI, 

Acting Commissioner of the 

Social Security Administration,1

Defendant. 

 / 

ORDER ON REPORT AND RECOMMENDATION

THIS CAUSE came before the Court upon the Parties’ cross motions for summary 

judgment. Plaintiff Damioun Laquann Cole (“Plaintiff”) filed a Complaint seeking reversal of a 

final decision of the Commissioner of Social Security (“Defendant”). (ECF No. 1). On May 1, 

2021, Plaintiff filed his Motion for Summary Judgment and Memorandum in Support Thereof. 

(“Pl.’s Mot.”) (ECF No. 29). On August 2, 2021, Defendant filed his Motion for Summary 

Judgment with Supporting Memorandum of Law and Response to Plaintiff’s Motion for Summary 

Judgment. (“Def.’s Mot.”) (ECF No. 32). The Court referred the matter to the Honorable 

Jacqueline Becerra, United States Magistrate Judge, who issued a Report and Recommendation 

recommending that Plaintiff’s Motion be GRANTED IN PART AND DENIED IN PART, and 

Defendant’s Motion be GRANTED IN PART AND DENIED IN PART. (“R&R”) (ECF No. 36). 

1

 Plaintiff initiated this suit against then-Acting Commissioner Andrew Saul. Kijakazi replaced 

Andrew Saul as the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Federal 

Rule of Civil Procedure 25(d), “[a]n action does not abate when a public officer who is a party in 

an official capacity . . . otherwise ceases to hold office while the action is pending. The officer's 

successor is automatically substituted as a party. Later proceedings should be in the substituted 

party's name, but any misnomer not affecting the parties’ substantial rights must be disregarded.” 

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The Parties did not file objections to the R&R and the time to do so has passed. The matter is now 

ripe for review. As set forth below, the Court ADOPTS the R&R.

The Court may accept, reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). 

As set forth in the R&R, Magistrate Judge Becerra makes the following findings: (1) the 

Administrative Law Judge (“ALJ”) erred in its failure to provide an explanation of how, if at all, 

it considered the opinions of Dr. Judith Siskind, Ph.D. with respect to Plaintiff’s cognitive 

functional abilities, see R&R at 15, 17–18, but that the ALJ did properly consider the opinion (or 

lack thereof) of Dr. Alejandro Arias, Psy.D., see id. at 18–19; (2) the ALJ erred in its failure to 

fully consider the objective evidence pertaining to Plaintiff’s back condition, see id. at 21–22; (3)

the ALJ properly discounted lay witnesses’ testimonies by stating that they were not consistent 

with the record, but that it should reconsider those testimonies in light of its renewed consideration 

of Dr. Siskind’s opinion and the evidence regarding Plaintiff’s back condition, see id. at 22–24; 

(4) the ALJ properly considered the listings at Step Three of the five-part analysis, should 

nevertheless reconsider whether this conclusion holds based on its reconsideration of Dr. Siskind’s 

opinion and the evidence regarding Plaintiff’s back condition, see id. at 24–28; (5) the ALJ 

properly complied with the requirements of Social Security Ruling 82-62 at Step Four of the fivepart analysis, see id. at 28–30; (6) the ALJ failed to pose complete hypotheticals to the Vocational 

Expert by failing to include all of Plaintiff’s relevant limitations, and therefore its Step Five 

determination was not supported by substantial evidence, see id. at 32; and (7) the ALJ was not 

required to resolve a conflict between a limitation to simple, routine and repetitive tasks vis-à-vis 

a reasoning level of two, because there is no apparent conflict for the ALJ to resolve, see id. at 33–

35. This Court agrees. 

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Accordingly, UPON CONSIDERATION of the R&R, the pertinent portions of the record, 

and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that 

the R&R (ECF No. 36) is ADOPTED, Plaintiff’s Motion (ECF No. 29) is GRANTED IN PART 

AND DENIED IN PART, and Defendant’s Motion (ECF No. 32) is GRANTED IN PART AND 

DENIED IN PART. The Court hereby REVERSES the Administrative Law Judge’s decision and 

REMANDS this cause to the Administrative Law Judge: 

1. To provide an explanation as to how it considers the opinions of Dr. Judith Siskind with 

respect to Plaintiff’s cognitive functional abilities; 

2. To reconsider its decision while accounting for the objective evidence pertaining to 

Plaintiff’s back condition; 

3. To reconsider the lay witness testimonies while accounting for Dr. Siskind’s opinion 

and the objective evidence pertaining to Plaintiff’s back condition; 

4. To reconsider whether its conclusions at Step Three hold based on its reconsideration 

of Dr. Siskind’s opinion and the evidence regarding Plaintiff’s back condition; and

5. To reconsider Step Five in light of the Magistrate Judge’s conclusion that the ALJ’s 

hypothetical questions were incomplete.

DONE AND ORDERED in Chambers at Miami, Florida, this ___ day of September, 2022. 

K. MICHAEL MOORE

UNITED STATES DISTRICT JUDGE

c: All counsel of record

24th

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