Cato v. Bisignano

• Court: District Court, S.D. Georgia
• Decided: August 27, 2025
• Docket: 4:24-cv-00193
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION CRYSTAL CATO, ) Plaintiff, Vv. CV424-193 FRANK BISIGNANO, Commissioner of Social Security, ) Defendant. ORDER After a careful, de novo review of the file, the Court concurs with

the Magistrate Judge’s Report and Recommendation, doc. 15, to which Plaintiff has objected, doc. 16, and the Commissioner has responded, doc. 17. Plaintiff does not object to the Magistrate Judge’s analysis of the ALJ’s consideration of her evidence regarding the impact of the side effects of her medications on her ability to work. See doc. 15 at 6-8; see generally doc. 16. Plaintiff does object to the Magistrate Judge’s analysis of the ALJ’s consideration of her evidence of absenteeism and its impact on her ability to work. See doc. 15 at 8-10; doc. 16 at 1-3. Plaintiffs objection focuses on the Report and Recommendation’s reliance on the Eleventh Circuit’s unpublished decision in Cherkaoui v.

Commissioner of Social Security, 678 F. App’x 902, 904 (11th Cir. 2017), arguing it was wrongly decided. See doc. 16 at 1-2. In Cherkaoui, the

Court reasoned that “whether the number of medical appointments affects [claimant’s] ability to work is not an appropriate consideration for assessing her residual functional capacity” since “[t]he number of

medical appointments she attended is not a functional limitation caused

by her impairments that would affect her physical or mental

capabilities.” Cherkaoui, 678 F. App’x at 904. The Magistrate Judge found this case “instructive and persuasive.” Doc. 15 at 9. The Magistrate Judge similarly found persuasive the appellate court’s unpublished decision in Blackmon v. Commissioner of Social Security, see doc. 15 at 9-10, where the Court found no error in the AlLJ’s failure to include absenteeism as a limitation, despite the

“extraordinary number of visits and hospitalizations documented in the record,” because “nothing in the record show[ed] that [claimant] could

not schedule future appointments outside of work hours, schedule more than one appointment per day, or schedule appointments on her off days, which would minimize the need to miss work.” 2024 WL 3495022, at *7 (11th Cir. July 22, 2024). Applying the rationale from both

Cherkaoui and Blackmon, the Magistrate Judge determined that the ALJ affording Plaintiff one day per month of absenteeism “does not justify remand,” since her prior medical appointments do not dictate her functional limitations, and Plaintiff had not otherwise demonstrated that she could not attend her appointments during times outside working hours. Doc. 15 at 10. The Magistrate Judge appropriately applied persuasive Eleventh Circuit authority in reaching his recommendation. That Plaintiff disagrees with the Eleventh Circuit’s rationale in Cherkaoui does not alter its persuasiveness. Additionally, as the Commissioner’s response to Plaintiffs objection points out, doc. 17 at 3, the Eleventh Circuit has

now cited favorably to Cherkaoui in a binding, published opinion, Malak

v. Commissioner of Social Security, 131 F.4th 1280, 1286-87 (11th Cir. 2025). There, the Court held that “a claimant’s medical appointments and whether those appointments affect the claimant’s ability to work

are not appropriate factors for the ALJ to consider when addressing the claimant’s RFC.” Jd. at 1287. Therefore, the Magistrate Judge correctly concluded that, as in Malak, Plaintiff here “cannot use her

previous medical appointments to argue that her RFC would have been

different had those appointments been considered.” Jd. For the forgoing reasons, the objections are OVERRULED, and

the Report and Recommendation of the Magistrate Judge is ADOPTED

as the opinion of the Court. Doc. 15. The Commissioner’s final decision

is AFFIRMED. The Clerk of Court is DIRECTED to CLOSE this Case. SO ORDERED this wy dag a bo i qe : HO} SA\GODBEY WOOD, JUDGE UN D STATES DISTRICT COURT SOUTDHERN DISTRICT OF GEORGIA