# Cardoso

> District Court, M.D. Florida · December 16, 2025

URL: https://www.frixlaw.com/law-library/cases/11249214

## Case

- **Full name:** Julie DiLorenzo Cardoso v. Commissioner of Social Security
- **Court:** District Court, M.D. Florida
- **Decided:** December 16, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11249214

## How later opinions describe it (automated extraction)

- explaining that “[a]lthough the burden temporarily shifts at step five, “the overall burden of demonstrating the existence of a disability as defined by the Social Security Act unquestionably rests with the claimant.”
- explaining that, under the former regulations, “‘the testimony of a treating physician must be given substantial or considerable weight unless ‘good cause’ is shown to the contrary.’”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JULIE DILORENZO CARDOSO,

Plaintiff,

v. Case No.: 8:24-cv-2738-KKM-LSG

COMMISIONER OF SOCIAL
SECURITY,

Defendant.
____________________________________/

REPORT AND RECOMMENDATION

The plaintiff Julie DiLorenzo Cardoso appeals the denial of her claim for
Social Security Disability Insurance (“SSDI”) benefits under Title II of the Social
Security Act (“SSA”). Docs. 1, 12. As explained below, I recommend affirming the
decision of the Commissioner.
I. Procedural background
On June 28, 2012, Cardoso applied for SSDI and alleged that her disability
began on September 4, 2009. Tr. 177-78, 193. She later amended her alleged
disability onset date to June 12, 2012. Tr. 1894. Cardoso satisfied the insured status
requirements of the SSA through December 31, 2014. Tr. 15.
On May 15, 2014, the ALJ denied Cardoso’s claim for benefits and found that
she was not disabled. Tr. 13-20. She sought review by the Appeals Council, which
denied her request. Tr. 1-3. Cardoso appealed the ALJ’s decision, and a March 28,
2017, order reverses the Commissioner’s decision and remands the case for further
proceedings after finding that the ALJ failed to appropriately evaluate a treating
physician’s opinion. Tr. 717-28. On remand, the ALJ found that Cardoso was not

disabled. Tr. 625-638. Cardoso appealed, and a September 29, 2021, order grants the
Commissioner’s unopposed motion to remand for further administrative
proceedings. Tr. 1433-1435.
On remand, the Appeals Council directed that a different ALJ receive
assignment of the case and that the ALJ obtain additional testimony from a

vocational expert. Tr. 1508-1509. The Appeals Council highlighted the “sit/stand
option” in the prior ALJ’s assessment of Cardoso’s residual functional capacity and
directed that “[b]efore relying on [vocational expert] testimony the ALJ shall ask the
[vocational expert] what her testimony is based on and will identify and resolve any
conflicts between the occupational evidence provided by the vocational expert and

information” in the Dictionary of Occupational Titles and the Selected
Characteristics of Occupations. Tr. 1508. The Appeals Council also noted that,
because Cardoso had filed a separate application for Title XVI benefits on July 25,
2019, and had been found disabled, the ALJ should consider only the period before
that application. Tr. 1509.

On September 15, 2022, Cardoso, a vocational expert, and Dr. Ronald E.
Kendrick, M.D., appeared and testified before an ALJ. Tr. 1439-1505. After that
hearing, the ALJ found that Cardoso was not disabled. Tr. 1407-1421. Cardoso
appealed, and the Commissioner moved unopposed to remand the case for further
administrative proceedings. Tr. 1972-73. A July 18, 2023, order grants the motion
and directs a judgment in favor of Cardoso. Tr. 1967-68. On remand, the Appeals
Council directed the ALJ to (1) evaluate whether Cardoso had chronic pain under

Social Security Ruling 03-2p; (2) “[g]ive further consideration to the treating and
nontreating source opinions” and “nonexamining source opinion” and “explain the
weight given to such opinion evidence”; (3) if warranted, “obtain supplemental
evidence from a vocational expert to clarify the effect of the assessed limitations on
the claimant’s occupational base”; and (4) “[t]ake any further action needed to

complete the administrative record and issue a decision.” Tr. 1895, 1977-79.
On April 11, 2024, another administrative hearing occurred with Cardoso, a
vocational expert, and an ALJ. Tr. 1932-64. On July 26, 2024, the ALJ once again
found that Cardoso was not disabled through December 31, 2014, the date last
insured. Tr. 1894-1920. Cardoso timely appealed, Doc. 1, and the case is ripe for

review under 42 U.S.C. § 405(g) and 20 C.F.R. § 404.984(d).1
II. Factual background and the ALJ’s decision
Born in 1968, Cardoso was forty-six years old on her date last insured and
forty-four when her alleged disabilities resulting from degenerative disc

disease/degenerative joint disease of her thoracic and lumbar spine, Type 2 diabetes
mellitus, diabetic polyneuropathy, and obesity began on June 12, 2012. Tr. 1898,

1 Because of the district court’s remand, Tr. 1967-68, and because the Appeals Council did not
assume jurisdiction, the ALJ’s July 26, 2024, constitutes a final decision under 20 C.F.R. §
404.984(d).
1919. Cardoso has a high school education, and her occupational history includes
work as a probation and parole officer. Tr. 1918-19. Cardoso engaged in no
substantial, gainful activity between June 12, 2012, and December 31, 2014.

Tr. 1898.
After conducting a hearing and reviewing the evidence, the ALJ determined
that Cardoso’s impairments are severe but that no impairment or combination of
impairments “meets or medically equals” the severity of one of the impairments
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 1901-02. The ALJ then

concluded that Cardoso has a residual functional capacity to perform “less than the
full range of sedentary work,” as defined in 20 C.F.R. § 404.1567(a) with the
following limits:
[Cardoso] could occasionally lift or carry 10 pounds; could frequently
lift or carry less than 10 pounds; could sit for a period of six (6) hours;
stand for a period of two (2) hours; walk for a period of two (2) hours;
and push/pull as much as she could lift/carry. She could occasionally
operate foot controls on the right and occasionally operate foot controls
on the left. Postural limitations would include occasionally climbing
ramps and stairs; never climbing ladders, ropes, or scaffolds; and
occasionally balance, stoop, kneel, crouch, and crawl. Environmental
limitations would include no exposure to unprotected heights, moving
mechanical parts; no exposure to extreme cold, extreme heat; and no
exposure to heavy vibration such as the use of a jackhammer or
anything similar in nature that would give off heavy vibrations, or
heavy machinery. Furthermore, she would require a sit/stand
alternative or the ability to alternate positions after a period of 30
minutes.

Tr. 1903. In formulating Cardoso’s residual functional capacity, the ALJ considered
Cardoso’s subjective complaints, as well as a third-party function report submitted by
her mother. Tr. 1904, 1917. The ALJ found that Cardoso’s medically determinable
impairments “could reasonably be expected to cause the alleged symptoms.” Tr.
1904. However, the ALJ found that the statements of Cardoso and her mother were
not entirely consistent with the medical and other evidence. Tr. 1904, 1917.

Considering Cardoso’s impairments and the testimony of a vocational expert, the
ALJ determined that Cardoso could not perform her past relevant work. Tr. 1918-19.
However, the ALJ found that Cardoso could perform other jobs in the national
economy, including as a food and beverage order clerk, a charge account clerk, or a
call out operator. Tr. 1919-20. Accordingly, based on Cardoso’s age, education, work

experience, residual functional capacity, and the testimony of the vocational expert,
the ALJ found Cardoso not disabled. Tr. 1920.
III. Standard of review
Entitlement to SSDI benefits requires a “disability,” which means the

“inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment” likely to result in death, lasting for at
least twelve months, or expected to last more than twelve months. 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment” means a
condition resulting from “anatomical, physiological, or psychological

abnormalities . . . demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. §§ 423(d)(3); 1382c(a)(3)(D). To be eligible for
benefits under Title II, a person must demonstrate disability on or before the day for
which the person was last insured. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005) (per curiam); see 42 U.S.C. §§ 416(i)(3), 423(a) & (c); see 20 C.F.R. §§ 404.101,
404.130, 404.131.
Social Security Administration (“SSA”) regulations establish a five-step

“sequential evaluation process” to determine whether a person is disabled. 20 C.F.R.
§§ 404.1520(a), 416.920(a). The ALJ must determine whether the person (1) is
engaged in “substantially gainful activity,” (2) has a severe impairment, (3) has a
severe impairment that “meets or equals” the medical criteria of 20 C.F.R. Part 404,
Subpart P, Appendix 1, (4) can perform the person’s past relevant work, and (5) can

perform other work in the national economy in view of the person’s age, education,
and work experience. 20 C.F.R. §§ 404.1520(a), 416.920(a). A person may obtain
benefits only if unable to perform other work. 20 C.F.R. §§ 404.1520(g), 416.920(g);
Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).

An order affirming the ALJ’s opinion is warranted if substantial evidence and
applicable law support the decision. 42 U.S.C. §§ 405(g), 1383(c)(3). “Substantial
evidence” means that which “a reasonable mind might accept as adequate to support
a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996). The Commissioner’s factual findings receive deference,

but the legal conclusions receive “close scrutiny.” Keeton v. Dep’t of Health & Human
Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). A reviewing court may not find facts,
weigh evidence, or substitute its judgment for the ALJ’s, even if the evidence
preponderates against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983). However, the Commissioner’s failing either to apply the law
correctly or to provide sufficient legal analysis mandates reversal. Keeton, 21 F.3d at
1066. Thus, the scope of review is limited to determining whether substantial
evidence supports the Commissioner’s findings and whether the Commissioner

applied the correct legal standard. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002).
IV. ANALYSIS
Cardoso raises three issues on appeal. First, she argues that the ALJ erred by

rejecting the opinions of three medical experts about Cardoso’s ability to work on a
regular and sustained basis. Second, she argues that the ALJ lacked substantial
evidence to conclude that Cardoso could perform the sedentary occupations
identified by the vocational expert with a “sit/stand” option. Finally, Cardoso argues
that because of the extraordinary delay in adjudicating her claim, the completeness

of the record, and the uncontroverted evidence of disability, this Court should
remand the case for an award of benefits. Doc. 12.
a. The ALJ articulated sufficient reasons for rejecting expert medical
opinions about Cardoso’s working on a regular and sustained
basis.

The determination of whether a person is disabled requires assessing the
person’s residual functional capacity, which is “the most that [the person] can still do
despite [the person’s] limitations.” 20 C.F.R. §§ 404.1520(a), 404.1545(a)(1). In other
words, the residual functional capacity is “the individual’s maximum remaining
ability to do sustained work activities in an ordinary work setting on a regular and
continuing basis[.]” Social Security Ruling (“SSR”) 96-8P, 1996 WL 374184, *1
(S.S.A. Jul. 2, 1996). The SSA defines a “regular and continuing basis” as “8 hours a
day, for 5 days a week, or an equivalent work schedule.” Id. As noted by Cardoso,
vocational experts in this case testified that missing work more than once or twice a

month would preclude competitive employment. Doc. 12 at 6; Tr. 1494, 1920, 1956-
1957.
Formulating a person’s residual functional capacity requires evaluating
medical opinions. The ALJ must consider every medical opinion, 20 C.F.R.
§ 404.1527(c), but “is free to reject the opinion of any physician when the evidence

supports a contrary conclusion.” Stolte v. Dudek, No. 8:24-CV-551-JRK, 2025 WL
925854, at *5 (M.D. Fla. Mar. 27, 2025) (quoting Oldham v. Schweiker, 660 F.2d
1078, 1084 (5th Cir. 1981)). The ALJ must, however, “state with particularity the
weight given to different medical opinions and the reasons therefor.” Id.; Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011); 20 C.F.R. § 404.1527(c)(2).
Because Cardoso filed her claim before March 27, 2017, the SSA’s former
standard for evaluating medical opinion evidence applies here. Under that standard,
a treating physician’s opinion received greater weight than a non-treating physician’s
opinion. 20 C.F.R. § 404.1527(c)(1). If the treating source’s medical opinion on the

nature and severity the impairment was “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and [] not inconsistent with the other
substantial evidence” in the record, the treating source’s opinion enjoyed
“controlling weight.” 20 C.F.R. § 404.1527(c)(2); Crawford v. Comm'r of Soc. Sec., 363
F.3d 1155, 1159 (11th Cir. 2004) (explaining that, under the former regulations, “‘the
testimony of a treating physician must be given substantial or considerable weight
unless ‘good cause’ is shown to the contrary.’”) (quoting Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997)). “Good cause” existed when the “(1) treating

physician’s opinion was not bolstered by the evidence; (2) evidence supported a
contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent
with the doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2004). “When electing to disregard the opinion of a treating physician,”

however, the ALJ must clearly articulate the reasons. Id. at 1241.
Here, the ALJ considered medical opinion evidence from treating physicians
Dr. Robert Guirguis and Dr. Khalilah Weston and from independent medical expert
Dr. Robert Kendrick. Tr. 1912-1915. Dr. Guirguis completed a “functional capacity
assessment” on March 11, 2014, in which he checked “yes” in response to the

question “[w]ould the patient likely need to miss work on an unscheduled basis.”
Tr. 584. Dr. Guirguis checked “3 or more” when asked to estimate how many days
Cardoso would miss each month. Tr. 584. On September 5, 2014, Dr. Guirguis
provided deposition testimony during which he confirmed (1) that Cardoso “has an
unstable back; ‘unstable’ in terms of we don’t know when we’re gonna have the flare-

ups”; (2) that “[i]t might be even more than three days, depending on the severity”;
and (3) that “we cannot [] have the foresight to see if this is actually going to happen;
but there is – there’s enough data looking at these types of – of backs to know that
these flare-ups can certainly occur at different levels of frequencies.” Tr. 590-91, 595,
603-604. Similarly, Dr. Weston completed a “medical source statement” on
September 25, 2020, in which she agreed that Cardoso would need to miss work on
an unscheduled basis because of her condition. Tr. 1680-81. Dr. Weston checked “3
or more” when asked how many days Cardoso would miss. Tr. 1681.

Consistent with Drs. Guirguis and Weston, Dr. Kendrick testified during the
September 15, 2022, administrative hearing that, because of Cardoso’s chronic pain,
“she would have bad days that she couldn’t even show up to work.” Tr. 1478. When
the ALJ inquired if Dr. Kendrick could determine how often Cardoso’s condition
would require her to miss work, the following exchange occurred:

ALJ: And were you able to ascertain or determine, based upon your
review of the medical evidence, how often she might have to miss
work?

DR. KENDRICK: There’s nothing in the medical evidence that shows
that, except her testimony and according to the testimony, she has fairly
restricted activities, due to her chronic pain, but there’s no way to
predict it. You’d need a crystal ball. I don’t have one of those.

ALJ: Okay, now was there anything, as it relates in your review of the
medical evidence, that would support the time off work?

DR. KENDRICK: Nothing other than her testimony.

Tr. 1479. On cross-examination, Dr. Kendrick repeated his opinion that the record
lacked sufficient evidence about the frequency of Cardoso’s “bad days”:
ATTORNEY: Right and you also testified that you believed that on her
worse days, on her bad days, her conditions would prevent her from
attending work, correct?

DR. KENDRICK: Correct.

ATTORNEY: But you said you didn’t have a crystal ball or a way to
predict but Dr. Guirguis, who had treated her for many years, opined
that she would miss three days a month and in fact Dr. Weston, her
subsequent pain doctor, said two days a month. Would you agree or
defer to their opinions about the frequency that she would be missing
work?

DR. KENDRICK: Well, that’s their opinion. Everyone is entitled to
their opinion. I don’t see how they arrive at it, because they don’t have
a crystal ball either.

ATTORNEY: Does the benefit of having seen somebody for 7 years,
more than 75 times, doing the testing, giving medication and whatnot,
increase their ability to be able to give an opinion about how often they
would have bad days?

DR. KENDRICK: Generally speaking that’s true.

Tr. 1486-87.
In other words, the experts agreed that Cardoso could have “flare ups” or
“bad days” that would preclude her from working. And both Dr. Guirguis and Dr.
Kendrick agreed that the frequency of those days was somewhat, if not totally,
unpredictable. Yet Dr. Guirguis gave a prediction and Dr. Kendrick maintained that
nothing in the medical evidence supported that prediction. The ALJ afforded Dr.
Kendrick’s testimony “great weight” and Dr. Guirguis’s and Dr. Weston’s testimony
“little weight.” Tr. 1912-14.
In rejecting Dr. Guirguis’s opinion, the ALJ acknowledged the physician’s
general expertise and specific experience in treating Cardoso. The ALJ also agreed
that Dr. Guirguis’s medical findings were consistent with the assessed limits in
Cardoso’s functioning. However, the ALJ found that the degree of limitation
assessed by Dr. Guirguis lacked support in the medical record. Specifically, as to the
amount of missed work, the ALJ “considered Dr. Guirguis’s statements regarding
the fluctuating nature of [Cardoso’s] symptoms and possible flare ups from even
simple movement[.]” Tr. 1914. However, “even Dr. Guirguis’s own records do not
indicate findings consistent with a flare up limiting [Cardoso] to this severely reduced

degree of activity or necessitating frequent absences beyond customary employer
tolerances.” Tr. 1914.
Cardoso characterizes this conclusion by the ALJ as “nothing more than a lay
reading of the examination findings of record” and claims reversible error. Doc. 12 at
12-13. However, the record shows that this was not a “lay reading” of the record, but

an interpretation supported by the expert opinion of Dr. Kendrick, who said that the
medical record provided no support for three or more unscheduled absences and that
he did not see how Dr. Guirguis arrived at that opinion. Tr. 1913-14. According to
the ALJ, Dr. Kendrick “specifically considered the likelihood that [Cardoso] would
have good and bad days with respect to her pain; however, the medical evidence of

record did not support [Cardoso’s] testimony that she would experience such
fluctuation in her symptoms that she would be unable to perform the reduced range
of sedentary work on a regular and consistent basis.” Tr. 1912-13. Cardoso calls this
“a misrepresentation of Dr. Kendrick’s testimony.” Doc. 12 at 8 (citing Tr. 1472-82).
To the contrary, the ALJ accurately characterized Dr. Kendrick’s opinion—yes,

Cardoso could have bad days but, in his view, the record contained no evidence
supporting the frequency or predictability of those bad days during the relevant
period.
As for Dr. Weston, the ALJ noted that Cardoso began treating with her in
2016, which was outside of the relevant period and a year and a half after the date
last insured. Tr. 1915. The ALJ found that, although Dr. Weston’s opinion was

consistent with that of Dr. Guirguis, neither the objective examination findings nor
the other medical evidence supported limitations to the degree assessed by Dr.
Weston. Although Dr. Weston’s records show more widespread complaints and
notable findings, because these arose only after the date last insured, they would not
support greater limits during the relevant period. Tr. 1915. The ALJ found that Dr.

Weston’s opinion was inconsistent with statements in her treatment records,
including Dr. Weston’s opinion that, with medication and treatment, Cardoso could
return to work. Tr. 1915; see also Tr. 1332 (“I informed [Cardoso] that I would not
like to see her permanently disabled and do think that with medications or treatment
[we] can get her back to working.”).

Cardoso argues that the ALJ “failed to consider the impact of [Cardoso’s] ‘bad
days’ on [] Cardoso’s ability to work on a regular and sustained basis.” Doc. 12 at
14. The record shows, however, that the ALJ considered this evidence but found no
support in the medical record for this level of restriction during the relevant period.
An ALJ can reject a treating physician’s opinion based on the lack of supporting

evidence within the relevant period, inconsistency with other statements in the
record, and evidence supporting a contrary conclusion. See Phillips, 357 F.3d at 1241;
see also Hamrick v. Kijakazi, No. 8:20-CV-2606-TPB-TGW, 2022 WL 4136605, at *10
(M.D. Fla. Aug. 4, 2022) (explaining that “the conclusory check-box format of [the
examining physician’s] opinions is, in itself, a recognized basis for discounting the
assessment.”); Brown v. Commissioner of Social Security, 442 Fed. Appx. 507, 512 (11th
Cir.2011) (holding that “the ALJ had good cause not to give controlling weight to

[the treating physician’s] opinion” because they “were conclusory, as the forms . . .
regarding [the claimant’s] limitations did not reference his treatment records or
adequately explain his opinions.”).
Here, the ALJ stated with particularity her reasons for rejecting the
assessments of Drs. Guirguis and Weston and, in doing so, did not rely

impermissibly on her own lay opinion. See Raper v. Comm'r of Soc. Sec., 89 F.4th 1261,
1276 n.14 (11th Cir. 2024), cert. denied sub nom. Raper v. O'Malley, 145 S. Ct. 984, 220
L. Ed. 2d 362 (2024) (“We emphasize that there are no magic words to state with
particularity the weight given to medical opinions or the reasons for discounting

them. What matters is whether the ALJ ‘state[s] with at least some measure of clarity
the grounds for his [or her] decision.’”); Hargress v. Soc. Sec. Admin., Comm'r, 883 F.3d
1302, 1306 (11th Cir. 2018) (“The ALJ’s stated reason for discounting Dr. Odjegba’s
opinion—that it was inconsistent with his own medical records and the record as a
whole—was adequate and amounts to good cause.”); Huntley v. Soc. Sec. Admin., 683

F. App’x 830, 833 (11th Cir. 2017). Accordingly, I find no error in the ALJ’s
assessment of the expert opinions as to Cardoso’s ability to work on a regular and
sustained basis.
b. The ALJ had substantial evidence to conclude that Cardoso could
perform sedentary jobs with a sit/stand option.

Step five of the sequential evaluation requires the ALJ to determine whether
the person is capable of performing other work. 20 C.F.R. § 404.1520(g). At this step,
the burden shifts to the Commissioner to “provide evidence about the existence of
work in the national economy” that the person can do. 20 C.F.R. §§ 404.1512(b)(3),
404.1560(c)(2); Yuckert, 482 U.S. at 146 n.5; Washington v. Comm’r of Soc. Sec., 906
F.3d 1353, 1359 (11th Cir. 2018). “If the SSA makes this showing, ‘the burden shifts
back to the claimant to prove she is unable to perform the jobs suggested by the
[SSA].’” Washington, 906 F.3d at 1359 (explaining that “[a]lthough the burden

temporarily shifts at step five, “the overall burden of demonstrating the existence of a
disability as defined by the Social Security Act unquestionably rests with the
claimant.”). To determine whether a person can perform other work, the ALJ may
rely on a vocational expert. 20 C.F.R. § 404.1566(e).
Here, the ALJ determined that Cardoso could perform “less than the full

range of sedentary work as defined in 20 C.F.R. § 404.1567(a),” which in part “is
defined as one which involves sitting [and] a certain amount of walking and
standing.” 20 C.F.R. § 404.1567(a); Tr. 1903. “[T]o perform a full range of sedentary
work, an individual must be able to remain in a seated position for approximately 6
hours of an 8-hour workday, with a morning break, a lunch period, and an afternoon

break at approximately 2-hour intervals.” SSR 96-9P, 1996 WL 374184, *6. The SSA
acknowledges that an individual may need to alternate periodically between sitting
and standing or possibly walking. Id. at *7. If this need “cannot be accommodated by
scheduled breaks and a lunch period, the occupational base for a full range of
unskilled sedentary work will be eroded.” Id. However:

The extent of the erosion will depend on the facts in the case record,
such as the frequency of the need to alternate sitting and standing and
the length of time needed to stand. The [residual functional capacity]
assessment must be specific as to the frequency of the individual’s need
to alternate sitting and standing. It may be especially useful in these
situations to consult a vocational resource in order to determine
whether the individual is able to make an adjustment to other work.
Id.
The residual functional capacity assessment requires that Cardoso have “a
sit/stand alternative or the ability to alternate positions after a period of 30 minutes.”
Tr. 1903. During the September 15, 2022, administrative hearing at which Dr.
Kendrick testified, the ALJ heard from vocational expert Dana Lessne. Tr. 1490-
1505. The ALJ explained to Lessne that Cardoso would require a sit/stand
alternative or the ability to alternate positions. Tr. 1493. Lessne testified that,
although Cardoso could not perform her past relevant work, she could perform work
as a document preparer, addresser, or call out operator. Tr. 1494. Lessne testified
that his opinion about the sit/stand alternative was based on his “education,
experience and training” and noted “that my assumption is that the individual would
remain on task.” Tr. 1495. The following exchange ensued:
ALJ: Thank you and yes, that assumption would have remained correct
as I was not addressing and I did not indicate that they would be off
task while changing positions.
ATTORNEY: Again, I’m sorry, the mask is – I’m having trouble
hearing.

ALJ: I said that the assumption would be correct, as I did not indicate
that they’d be off task while they were changing positions.

ATTORNEY: Okay, I see what you’re saying. All right. Because I was
looking at the Appeals Council order and it said if there was a change in
position they’d want to know what the implications would be for that.
So, if you’re defining it as would be able to continue persistence and
pace and task –

ALJ: And that is based upon Dr. Kendrick’s testimony.

ATTORNEY: Right.

ALJ: Which he had stated that she would be able to do the sit stand
alternative in a 30-minute time frame, without any off task behavior and
be able to remain focused. So, that was part of his testimony today.

ATTORNEY: I recall that, Your Honor, yes ma’am.

ALJ: Okay, thank you. Counsel, did you wish to inquire?

ATTORNEY: I don’t have any additional questions.
Tr. 1495-96. On the basis of this and other evidence, the ALJ found Cardoso not
disabled. Tr. 1407-1421. After remand on request of the Commissioner, the Appeals
Council instructed that the ALJ should, if warranted, “obtain supplemental evidence
from a vocational expert to clarify the effect of the assessed limitations on the
claimant’s occupational base” and that “[t]he hypothetical questions should reflect
the specific capacity/limitations established by the record as a whole.” Tr. 1979.
Vocational expert Gary Fanin testified at the April 11, 2024, administrative
hearing. Tr. 1948. The ALJ inquired with Fanin about the sit/stand alternative or the
ability to alternate positions after thirty minutes. Tr. 1952. Fanin asked whether the
sit/stand alternative would be “consistent,” in other words, “[t]hey’re up for 30
minutes, sitting for 30 minutes, or is that – is it a random type of scenario”? Tr. 1952.
The ALJ explained:

ALJ: [W]hat I mean by that is the sit/stand alternative is that they have
the ability to hold the position for 30 minutes, but they do not need to
have 30 minutes in that position, if that makes sense. So they would be
able to sit for a set period of 30 minutes. They could either get up and
walk for a couple of minutes or they could get up and walk for 30
minutes before they could go back to sitting and standing for 30.

VE: Okay. So, but you’re saying that they’re going to leave the
workstation?

ALJ: No. I did not say that there was a loss in productivity necessarily.

VE: Okay. That’s my question, yes. If there is no loss in productivity
when they are standing or sitting.

ALJ: Yes.

Tr. 1952-53. Fanin explained that with a sit/stand alternative or the ability to
alternate positions and no loss in productivity, Cardoso could perform work as a
food and beverage clerk, a charge account clerk, or a callout operator. Tr. 1953. On
further inquiry by the ALJ, Fanin explained that, if a person was off task because of
the sit/stand alternative, “that would be work preclusive because then they are not
doing their job.” Tr. 1958. The ALJ inquired even more precisely and asked whether
a person who was off task “for a couple of minutes every thirty minutes” would be
able to work. Tr. 1959. In response, Fanin explained “that could be a problem” but
“[i]f they can take off task and be at their discretion of when they can take off the two
or three minutes or whatever it is, that would be okay[.]” Tr. 1959. The ALJ found
Fanin’s “vocational testimony to be valid and persuasive,” and a reliable basis for
determining that Cardoso “was capable of making a successful adjustment to other
work that existed in significant numbers in the national economy.” Tr. 1920.

Cardoso argues that a “sit/stand alternative or the ability to alternate positions
after a period of 30 minutes” is “work-preclusive” and inconsistent with the
requirements of sedentary work. Doc. 12 at 14-16. Cardoso accuses the ALJ of
“cherry-pick[ing]” and “ignor[ing]” as a “mere inconvenience” the vocational
expert’s testimony “on cross-examination.” Doc. 12 at 17. But Cardoso offers no

citation to the “cross-examination” that the ALJ purportedly ignored. In fact, all of
Fanin’s testimony aside from one question (found on Tr. 1960-61) occurred in
response to the ALJ’s direct examination of the witness, not the attorney’s cross-
examination. See generally Tr. 1948-61.
More importantly, Cardoso fails to identify record evidence showing that the

sit/stand alternative would necessarily result in a loss of productivity or time off-task.
Dr. Kendrick testified that the sit/stand alternative would not necessarily cause a loss
in productivity. Tr. 1479-80. Fanin explained that any problem with the sit/stand
alternative depended on whether Cardoso could move at her discretion. Tr. 1959-60.
In other words, the evidence before the ALJ showed that the sit/stand alternative

would not require Cardoso to be off task and that, as long as she could move at her
discretion, jobs existed in the national economy that Cardoso could perform. This
satisfied the Commissioner’s burden at step five “to determine if there is other work
available in significant numbers in the national economy that the claimant can
perform.” Washington, 906 F.3d at 1359. At this point, Cardoso had the burden of
showing that she was unable to perform these jobs, which she failed to do. See id.

Accordingly, the ALJ had substantial evidence from which to conclude that jobs
existed in the national economy that Cardoso could perform.
c. Remand for an award of benefits is unwarranted.
Finally, Cardoso seeks remand for an award of benefits because her 2012
application has been pending for over thirteen years. Cardoso blames the

Commissioner for this delay. Doc. 12 at 21-22. The Commissioner disagrees and
argues that, absent a determination of disability for her 2012 application, Cardoso is
not entitled to an award of benefits. Doc. 16 at 18.
A reversal with a remand is warranted under sentence four of 42 U.S.C.
§ 405(g) if the district court determines that the Commissioner’s decision (1) applies

the incorrect law, (2) fails to provide sufficient reasoning to show if the correct law
was applied, or (3) lacks substantial evidence. Keeton v. Dep't of Health & Human Serv.,
21 F.3d 1064, 1066 (11th Cir. 1994). However, a district court may reverse the ALJ’s
decision and award benefits if the Commissioner “has already considered the
essential evidence and it is clear that the cumulative effect of the evidence establishes

disability without any doubt” or the claimant has suffered an injustice. Davis v.
Shalala, 985 F.2d 528, 534 (11th Cir. 1993) (citing Bowen v. Heckler, 748 F.2d 629,
635-36 (11th Cir. 1984)); Walden v. Schweiker, 672 F.2d 835, 840 (11th Cir. 1982). An
ALJ’s error and the length of time an application has been pending cannot without
more establish an injustice warranting the immediate award of benefits. Kropp v.
Comm'r of Soc. Sec., No. 6:20-CV-1196-RBD-DCI, 2021 WL 2228338, at *3 (M.D.
Fla. May 12, 2021).
Although Cardoso endured a lengthy administrative process, the

Commissioner’s review of the record evidence consistently supports a finding that
Cardoso is not disabled. Four administrative hearings occurred. Each of those
hearings involved a lengthy review of Cardoso’s medical records and supplemental
evidence, as well as testimony from Cardoso and several experts. In four decisions
the ALJs unequivocally determined that Cardoso was not disabled during the

relevant period. As explained above, Cardoso identifies no reversable error in the
latest decision by the Commissioner. Thus, despite the procedural delays, Cardoso is
not entitled to an immediate award of benefits. Kropp, 2021 WL 2228338, at *3.
Vv. CONCLUSION
Accordingly, for the reasons explained above, I recommend affirming the
decision of the Commissioner, entering a final judgment in favor of the
Commissioner and against Cardoso, terminating any pending motion, and closing
the case.
REPORTED in Tampa, Florida, on this 16th day of December, 2025.

NDSAY S. GRIKF
United States Magistrate Judge

NOTICE TO PARTIES
A party has fourteen days from the day of service of this report either to file
written objections to the proposed findings and recommendation or to seek an
extension of the fourteen-day deadline. 28 U.S.C. § 636(b)(1)(C). Under Eleventh
Circuit Rule 3-1, a party failing to object to a magistrate judge’s findings or
recommendations “waives the right to challenge on appeal the district court’s order
based on unobjected-to factual and legal conclusions.” 11th Cir. R. 3-1; 28 U.S.C.
§ 636(b)(1). If the parties wish to expedite the resolution of this matter, they may
promptly file a joint notice of no objection.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11249214. Public record. Not legal advice.