UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 22-23717-CIV-ALTONAGA

PATRICIA JOHNSON, 

Plaintiff, 

v. 

MARTIN O’MALLEY, 

Commissioner of Social Security,

Defendant. 

____________________________/

ORDER

On November 13, 2022, Plaintiff, Patricia Johnson filed a Complaint [ECF No. 1] seeking 

review of the denial of her claims for disability insurance benefits and supplemental security 

income under the Social Security Act. The Clerk referred the matter to Magistrate Judge Melissa 

Damian for a report and recommendation on dispositive matters. (See Clerk’s Notice [ECF No. 

2]). Defendant filed the Administrative Record [ECF No. 16] on May 10, 2023. Plaintiff filed a

Motion for Summary Judgment [ECF No. 19] on July 10, 2023; and Defendant filed a combined 

Amended Motion for Summary Judgment and Response in Opposition to Plaintiff’s Motion for 

Summary Judgment [ECF No. 27] on August 22, 2023. Plaintiff did not file a response to 

Defendant’s Motion nor a reply in support of her Motion. 

The case now comes before the Court on Magistrate Judge Damian’s Report and 

Recommendation [ECF No. 31], entered on January 31, 2024. The Magistrate Judge recommends 

that the Court deny Plaintiff’s Motion; grant Defendant’s Motion; and affirm the decision of the 

Administrative Law Judge (“ALJ”). (See generally Report). On February 14, 2024, Plaintiff 

timely filed Objections [ECF No. 33] to the Report, to which Defendant filed a Response [ECF 

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No. 35]. For the following reasons, the Report is affirmed and adopted.

Standard. 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). “Parties filing objections to 

a magistrate’s report and recommendation must specifically identify those findings objected to. 

Frivolous, conclusive, or general objections need not be considered by the district court.” Marsden 

v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988) (citation omitted). An objection is thus entitled 

to de novo review only if it articulates a legal basis for the objection; merely reasserting a motion 

“without any reference to the magistrate judge’s order or its findings [is] insufficient to convey to 

the district court the substance of any objection[.]” United States v. Schultz, 565 F.3d 1353, 1361 

(11th Cir. 2009) (alterations added). In the absence of timely, specific objections, “the court need 

only satisfy itself that there is no clear error on the face of the record in order to accept the 

recommendation.” Fed. R. Civ. P. 72 advisory comm.’s note to 1983 addition (citation omitted). 

Discussion. Plaintiff seeks disability insurance benefits and supplemental security income 

for her alleged disability arising from spinal stenosis; enlarged heart; heart murmur; high blood 

pressure; and back, left arm, shoulder, and neck pain. (See Pl.’s Mot. 1, 4). The ALJ found that 

Plaintiff has several spine impairments, high blood pressure, obesity, chronic pain, and 

radiculopathy but nonetheless concluded she is not disabled and denied her claim. (See Admin. 

R. 23, 30).1

 In seeking reversal of the ALJ’s decision, Plaintiff argued that (1) the ALJ failed to 

properly evaluate Plaintiff’s cervical and lumbar spine impairments; (2) the ALJ’s decision is not 

supported by substantial evidence; and (3) the ALJ failed to properly assess Plaintiff’s symptoms 

and limitations. (See generally Pl.’s Mot.). The Magistrate Judge rejected each argument in her 

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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comprehensive 43-page Report. (See generally Report). 

Plaintiff raises three objections (see generally Objs.), two of which are largely rehashed 

versions of arguments Plaintiff presented to the Magistrate Judge; indeed, significant portions are 

verbatim or close to verbatim recitations of her Motion for Summary Judgment (compare id. 5–10 

with Pl.’s Mot. 16–23). In the end, only Plaintiff’s first objection squarely addresses the Report 

(see Objs. 1–2); thus, only this objection is entitled to de novo review.

Plaintiff’s first objection. Plaintiff objects to the Magistrate Judge’s determination that 

Plaintiff is not disabled because she failed to establish the simultaneous presence of all the listed 

criteria for evaluating her impairment. (See Objs. 1–5). 

The Social Security regulations outline a five-step sequential evaluation process for 

assessing whether a claimant is disabled. See Brightmon v. Soc. Sec. Admin., Comm’r, 743 F. 

App’x 347, 351 (11th Cir. 2018); 20 C.F.R. §§ 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v). First, 

an ALJ must determine whether the claimant is engaged in substantial gainful activity, see 20 

C.F.R. § 404.1520(a)(4)(i), and then whether the claimant has a severe impairment or combination 

of impairments, see id. § 404.1520(c). The ALJ agreed Plaintiff had not engaged in substantial 

gainful activity since the alleged onset date of her disability and that her disorders — namely, spine 

impairments, high blood pressure, obesity, chronic pain, and radiculopathy — are severe 

impairments. (See Admin R. 23). 

At the third step, an ALJ is required to determine whether the claimant’s impairment or 

impairments are of a severity that meets or medically equals the criteria of an impairment in the 

Listing of Impairments. See 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Pt. 404, Subpt. P. App. 1. 

If so, the claimant is disabled; if not, the analysis proceeds to step four, at which point the ALJ 

must determine whether the claimant can perform her past relevant work. See 20 C.F.R. § 

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404.1520(f). If she cannot, the ALJ proceeds to step five and must then determine whether the 

claimant can do any other work, considering her residual functional capacity (“RFC”), i.e., her 

abilities, age, education, and experience. See 20 C.F.R. § 404.1520(g). Here, the ALJ found 

Plaintiff did not meet or medically equal a listed impairment and could perform her prior work as 

a telephone solicitor. (See Admin R. 23–30).

The Magistrate Judge determined that the ALJ’s conclusion that Plaintiff did not meet or 

equal a listed impairment was not erroneous because Plaintiff did not establish the simultaneous

presence of all of the criteria for a listing within a consecutive 12-month period. (See Report 30 

(citing Butler v. Kijakazi, 2023 WL 5767457, at *8–9 (M.D. Ala. Sept. 6, 2023))). Plaintiff objects 

to the Magistrate Judge’s conclusion and takes issue with the Magistrate Judge’s reliance on 

Butler. (See Objs. 2). Plaintiff insists the criteria need only be present within a 12-month period, 

not simultaneously, “[s]ince this case was decided during the ‘pandemic period[.]’” (Id. 2 

(alteration added; quoting Listing 1.00(C)(7)(c))). Plaintiff further disputes the ALJ’s and

Magistrate Judge’s failure to “substantive[ly]” address the concept of “equaling[]” the listing 

requirements. (Id. (alterations added; quotation marks omitted)). 

Even assuming Plaintiff need not have shown simultaneous presence of a listing’s 

requirements, the ALJ determined Plaintiff’s “impairments do not meet or medically equal any 

listing” — without qualifying this finding with a requirement that the criteria for a listing be 

present simultaneously. (Admin R. 23). Plaintiff nonetheless insists she satisfies Listing 1.15,

2

2 Listing 1.15 requires that all four criteria be met: 

A. Neuro-anatomic (radicular) distribution of one or more of the following symptoms 

consistent with compromise of the affected nerve root(s): 1. Pain; or 2. Paresthesia; or 3. 

Muscle fatigue.

B. Radicular distribution of neurological signs present during physical examination . . . or 

on a diagnostic test . . . and evidenced by 1, 2, and either 3 or 4: 1. Muscle weakness; and 

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but the ALJ determined otherwise because the evidence suggested Plaintiff’s use of a cane was not 

medically necessary; she possessed intact deep tendon reflexes; she lacked focal neurological 

deficits at her examinations; she had intact sensation; she could ambulate without a supportive 

device; and she could stand on either foot independently and on her heels and toes without 

difficulty. (See id. 27–28). In other words, the record supports the ALJ’s determination that there 

was insufficient evidence that Plaintiff met or equaled the requirements of Listing 1.15 at any 

point, regardless of the timing.

Plaintiff also takes issue with the “conclusory” nature of the ALJ’s findings and the 

Magistrate Judge’s analysis with regard to their assessment of Plaintiff medically equaling a 

listing’s requirements. (Objs. 2–4 (quotation marks and emphasis omitted)). But as Plaintiff is 

surely aware, “it is not required that the [ALJ] mechanically recite the evidence leading to [the] 

determination.” Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986) (alterations added). 

Indeed, as Social Security Ruling (“SSR”) 17-2P provides, “[g]enerally, a statement that the 

2. Sign(s) of nerve root irritation, tension, or compression, consistent with compromise of 

the affected nerve root . . . ; and 3. Sensory changes evidenced by: a. Decreased sensation; 

or b. Sensory nerve deficit (abnormal sensory nerve latency) on electrodiagnostic testing; 

or 4. Decreased deep tendon reflexes.

C. Findings on imaging . . . consistent with compromise of a nerve root(s) in the cervical 

or lumbosacral spine.

D. Impairment-related physical limitation of musculoskeletal functioning that has lasted, 

or is expected to last, for a continuous period of at least 12 months, and medical 

documentation of at least one of the following: 1. A documented medical need . . . for a 

walker, bilateral canes, or bilateral crutches . . . or a wheeled and seated mobility device 

involving the use of both hands . . .; or 2. An inability to use one upper extremity to 

independently initiate, sustain, and complete work-related activities involving fine and 

gross movements . . . , and a documented medical need . . . for a one-handed, hand-held 

assistive device . . . that requires the use of the other upper extremity or a wheeled and 

seated mobility device involving the use of one hand . . . ; or 3. An inability to use both 

upper extremities to the extent that neither can be used to independently initiate, sustain, 

and complete work-related activities involving fine and gross movements . . . .

20 C.F.R. § 404, Subpt. P, App. 1 (alterations added).

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individual’s impairment(s) does not medically equal a listed impairment constitutes sufficient 

articulation for this finding.” 2017 WL 3928306, at *4 (alteration added). 

Here, the ALJ made this statement. (See Admin R. 23). Although Plaintiff cites evidence 

contradicting the ALJ’s conclusion, Plaintiff misunderstands the substantial evidence standard. 

The Court “may not reweigh the evidence and decide facts anew and must defer to the ALJ’s 

decision if it is supported by substantial evidence even if the evidence may preponderate against 

it.” Strickland v. Comm’r of Soc. Sec., 516 F. App’x 829, 831 (11th Cir. 2013) (citation omitted). 

The Court thus agrees with the Magistrate Judge that “[b]ased on the record before the 

Court . . . the ALJ’s determination that Ms. Johnson did not satisfy her burden of establishing that 

her impairments meet or medically equal any one of the listings of impairments, including the 

criteria of Listing 1.15, is supported by substantial evidence and that the correct legal standards 

were applied.” (Report 31 (alterations added)).

In short, Plaintiff’s first objection is overruled.

Plaintiff’s second and third objections. As discussed, Plaintiff’s second and third 

objections are largely copied from her Motion with no mention of the Magistrate Judge’s analysis. 

(Compare Objs. 5–10 with Pl.’s Mot. 16–23). Since these are not proper objections, the Court 

reviews the remainder of the Report for clear error. See Macort v. Prem, Inc., 208 F. App’x 781, 

784 (11th Cir. 2006) (citations omitted).

The Report summarizes Plaintiff’s background and the procedural background of this case; 

acknowledges the standard of review; lays out the five-step analysis required by 20 C.F.R. sections 

416.920(a) and 404.1520 for a disability determination; describes the findings of the ALJ at each 

step; and carefully considers and evaluates Plaintiff’s arguments that (1) the ALJ’s RFC 

determination is not supported by substantial evidence as he failed to consider Plaintiff’s 

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absenteeism, mental state, carpal tunnel, chronic pain, and combination of impairments in making 

his RFC determination; and (2) the ALJ failed to properly assess Plaintiff’s testimony about her 

symptoms and limitations. (See Report 31–42). 

The Magistrate Judge correctly rejects Plaintiff’s arguments. First, the Magistrate Judge 

was correct that the Eleventh Circuit has rejected the argument that absenteeism can render 

someone disabled, as medical appointments are not a functional limitation that affect physical or 

mental capabilities. See Cherkaoui v. Comm’r of Soc. Sec., 678 F. App’x 902, 904 (11th Cir. 

2017). 

Second, the Magistrate rightly determined that the ALJ’s conclusion was supported by 

substantial evidence. (See Report 31–38); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 

1997) (“Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable 

person would accept as adequate to support a conclusion.” (citations omitted)). The ALJ 

considered Plaintiff’s chronic pain and found it was a severe impairment but discredited her 

testimony about the effects of her pain on her abilities given other evidence in the record. (See 

Admin R. 23, 27). The ALJ cited recent MRI scans, which showed no significant canal or 

foraminal stenosis of the spine; and physical examinations, which showed she had normal ranges 

of motion, negative straight leg rising, normal gait, and equal and intact deep tendon reflexes. (See 

id. 22). Regarding Plaintiff’s carpal tunnel syndrome, although the ALJ did not classify Plaintiff’s 

carpal tunnel syndrome as severe or non-severe, the Magistrate Judge rightly concluded the error 

was harmless because the ALJ considered Plaintiff’s severe and non-severe impairments when

assessing whether she met or equaled any listed impairments. (See Report 35–36). 

Third, the Magistrate Judge correctly acknowledged — and Plaintiff does not dispute —

that Plaintiff did not report any mental issues in her applications or in her testimony before the 

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ALJ. (See id. 33–34). As the Magistrate Judge also noted, the record strongly suggests Plaintiff 

was alert and oriented, with no evidence of neurological deficits, and had intact functional 

cognition, clear and coherent speech, and normal mood and affect. (See id. 34). Ultimately, the 

ALJ reported he considered the overall medical evidence in reaching his determination and cited

substantial evidence in the record to support the RFC determination, even absent explicit mention 

of any limitation on Plaintiff’s attention, concentration, or ability to handle changes and stress. 

(See Admin. R. 23–29). Indeed, regular sedentary work contemplates breaks every two hours. See 

SSR 96-9p, 1996 WL 374185, at *6; Wimberly v. Kijakazi, No. 20-cv-773, 2023 WL 5747330, at 

*3 n.6 (N.D. Ala. Sept. 6, 2023). 

Fourth, and finally, the Magistrate Judge properly concluded that Plaintiff’s arguments 

about her testimony (and several of her other arguments) ask the Court to make credibility 

determinations and reweigh evidence in a manner that exceeds the Court’s role. (See Report 40–

41). These things the Court will not do. See Mills v. Berryhill, 824 F. App’x 894, 900 (11th Cir. 

2020) (affirming the Commissioner’s decision where the plaintiff’s “arguments effectively ask[ed]

[the court] to decide the facts anew, make credibility determinations, or reweigh the evidence, 

none of which the [the court could] do” (citation omitted)). 

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

the Report. Accordingly, it is 

ORDERED AND ADJUDGED that the Objections [ECF No. 33] are OVERRULED, 

and the Report and Recommendation [ECF No. 31] is AFFIRMED AND ADOPTED as follows:

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

2. Defendant’s Amended Motion for Summary Judgment [ECF No. 27] is 

GRANTED.

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3. Final judgment shall issue separately.

DONE AND ORDERED in Miami, Florida, this 6th day of March, 2024.

________________________________________

CECILIA M. ALTONAGA

CHIEF UNITED STATES DISTRICT JUDGE

cc: counsel of record

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