Opinion
3:20-CV-79-CAR-MSH
01-12-2022
J.S., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
The Social Security Commissioner, by adoption of the Administrative Law Judge's (“ALJ's”) determination, denied Plaintiff's application for disability insurance benefits, finding that he was not disabled within the meaning of the Social Security Act and Regulations. Plaintiff contends the Commissioner's decision was in error and seeks review under the relevant provisions of 42 U.S.C. § 405(g). All administrative remedies have been exhausted.
LEGAL STANDARDS
The Court's review of the Commissioner's decision is limited to a determination of whether it is supported by substantial evidence and whether the correct legal standards were applied. Walker v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987) (per curiam). “Substantial evidence is something more than a mere scintilla, but less than a preponderance. If the Commissioner's decision is supported by substantial evidence, this Court must affirm, even if the proof preponderates against it.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (per curiam) (internal quotation marks and citation omitted). The Court's role in reviewing claims brought under the Social Security Act is a narrow one. The Court may neither decide facts, re-weigh evidence, nor substitute its judgment for that of the Commissioner. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam). It must, however, decide if the Commissioner applied the proper standards in reaching a decision. Harrell v. Harris, 610 F.2d 355, 359 (5th Cir. 1980) (per curiam).The Court must scrutinize the record as a whole to determine the reasonableness of the Commissioner's factual findings. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). However, even if the evidence preponderates against the Commissioner's decision, it must be affirmed if substantial evidence supports it. Id.
Credibility determinations are left to the Commissioner and not to the courts. Carnes v. Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991). It is also up to the Commissioner and not to the courts to resolve conflicts in the evidence. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (per curiam); see also Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir. 1986).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.
The claimant bears the initial burden of proving that he is unable to perform his previous work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986) (per curiam). The claimant's “burden is a heavy one, so stringent that it has been described as bordering on the unrealistic.” Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981). A claimant seeking Social Security disability benefits must demonstrate that they suffer from an impairment that prevents them from engaging in any substantial gainful activity for a twelve-month period. 42 U.S.C. § 423(d)(1)(A). In addition to meeting the requirements of the statute, in order to be eligible for disability payments, a claimant must meet the requirements of the Commissioner's regulations promulgated pursuant to the authority given in the Social Security Act. 20 C.F.R. § 404.1 et seq.
Under the Regulations, the Commissioner uses a five-step procedure to determine if a claimant is disabled. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20 C.F.R. § 404.1520(a)(4). First, the Commissioner determines whether the claimant is working. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is “working and the work [the claimant is] doing is substantial gainful activity, ” the Commissioner will find that the claimant is not disabled. Id. § 404.1520(b). Second, the Commissioner determines the severity of the claimant's impairment or combination of impairments. Id. § 404.1520(a)(4)(ii). A claimant must have a “severe impairment, ” which is one that “significantly limits [the claimant's] physical or mental ability to do basic work activities.” Id. § 404.1520(c). Third, the Commissioner determines whether the claimant's severe impairment(s) meets or equals an impairment listed in Appendix 1 of Subpart P to Part 404 of the Regulations (the “Listing”). Id. § 404.1520(a)(4)(iii). Fourth, the Commissioner determines whether the claimant's residual functional capacity (“RFC”) can meet the physical and mental demands of past work. Id. § 404.1520(a)(4)(iv). Fifth and finally, the Commissioner determines whether the claimant's RFC, age, education, and past work experience prevent the performance of any other work. 20 C.F.R. § 404.1520(a)(4)(v). In arriving at a decision, the Commissioner must consider the combined effects of all of the alleged impairments, without regard to whether each, if considered separately, would be disabling. Id. § 404.1523(c). The Commissioner's failure to apply correct legal standards to the evidence is grounds for reversal. Cooper v. Comm'r of Soc. Sec., 521 Fed.Appx. 803, 806 (11th Cir. 2013) (per curiam).
ADMINISTRATIVE PROCEEDINGS
Plaintiff applied for disability insurance benefits on September 9, 2016, alleging that he became disabled to work on April 22, 2016. His claim was denied initially on August 1, 2017, and upon reconsideration on October 4, 2017. Tr. 15. He timely requested an evidentiary hearing before an ALJ on December 1, 2017, and one was held on May 21, 2019. Tr. 15, 34, 126. Plaintiff appeared with his attorney and testified, as did an impartial vocational expert (“VE”). Tr. 15. On July 17, 2019, the ALJ issued an unfavorable decision denying his claim. Tr. 12-33. Plaintiff sought review by the Appeals Council but was denied on May 22, 2020. Tr. 1-6. Having exhausted the administrative remedies available to him under the Social Security Act, Plaintiff seeks judicial review of the Commissioner's final decision denying his application. His case is ripe for review. 42 U.S.C. § 405(g).
STATEMENT OF FACTS AND EVIDENCE
On the date he alleges he became disabled to work, Plaintiff was sixty-one years old and defined as an individual “closely approaching retirement age” under the Commissioner's regulations. Tr. 38, 90; 20 C.F.R. § 404.1563(e). He has a GED and past relevant work as an information and technical support specialist. Tr. 39-40; Finding 8, Tr. 28. In conducting the five-step sequential analysis used by the Commissioner in evaluating claims for disability, the ALJ found, at step two, that Plaintiff has severe impairments of degenerative disc disease of the thoracic and lumbar spine, degenerative joint disease of the left knee and bilateral hands and feet, and rheumatoid arthritis. Finding 3, Tr. 17-21. The ALJ next found, at step three, that these impairments, considered both alone and in combination with one another, neither meet nor medically equal a listed impairment set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. Finding 4, Tr. 21-22. Between steps three and four, he determined that Plaintiff retains the RFC to perform light work with exertional and non-exertional limitations. Finding 5, Tr. 22-27. Then, at step four, the ALJ established that this RFC did not prevent Plaintiff from resuming his past relevant work. Finding 6, Tr. 28-29. The ALJ, therefore, found Plaintiff to be not disabled to work and did not proceed to step five. Finding 7, Tr. 29.
DISCUSSION
Plaintiff raises two arguments. First, he alleges that the ALJ erred in finding that Plaintiff could perform his past relevant work. Pl.'s Br. 1, 6-17, ECF No. 17. Second, he contends that new evidence warrants remand. Id. at 1, 17-26. Neither argument has merit.
Plaintiff's brief significantly exceeds the twenty-page maximum set by the local rules. M.D. Ga. LR 7.4.
I. Past Relevant Work
Plaintiff argues that the ALJ erred in finding that he could perform his past relevant work. Id. at 1, 6-17. His argument contains three sub-arguments. First, he contends that the ALJ failed to properly consider Plaintiff's statements when determining that he could perform his past relevant work. Id. at 7-10. Second, he asserts that the ALJ failed to include any mental restrictions in his RFC despite a psychologist diagnosing him with a major depressive disorder. Id. at 10-13. Third, he argues that the ALJ did not properly weigh the opinion of his treating rheumatologist, Dr. Masseoud. Id. at 13-17.
A. Plaintiff's Statements
Plaintiff contends that the ALJ failed to properly credit his testimony that he could not perform his past relevant work. Pl.'s Br. 7-10. In support, he relies on SSR 82-62. Id. at 7. This provision provides that “[t]he claimant is the primary source for vocational documentation, and statements by the claimant regarding past work are generally sufficient for determining the skill level; exertional demands and nonexertional demands of such work.” SSR 82-62, 1982 WL 31386, at *3 (1982). Plaintiff, however, is confusing the issue of the classification of his past relevant work with his ability to perform his past relevant work. Plaintiff has not challenged the ALJ's classification of his past relevant work as that of an information and technical support specialist, light and skilled. Tr. 59-60; Pl.'s Reply Br. 1, ECF No. 21.
As for his subjective complaints about the inability to perform past relevant work, Plaintiff is, in effect, asking the Court to reweigh the evidence, which it cannot do. Moore, 405 F.3d at 1211. Instead, where an ALJ “articulate[s] explicit and adequate reasons” for discrediting a claimant's subjective testimony, the Court must not disturb those findings where they are supported by substantial evidence. Garcia v. Comm'r of Soc. Sec., 833 Fed.Appx. 303, 308 (11th Cir. 2020) (per curiam). Here, the ALJ clearly articulated his reasons for rejecting Plaintiff's subjective testimony, and his conclusions are supported by substantial evidence.
Regarding Plaintiff's physical impairments, the ALJ noted the largely unremarkable physical examinations since 2016, providing numerous examples in the record. Tr. 23-24, 802, 805, 815, 820, 826, 831, 835, 840, 843, 1007, 1010, 1140, 1173, 1227-28. The ALJ also cited Plaintiff's statements to his medical providers indicating either that his prescribed pain medication was effective or that he only used it sporadically. Tr. 23-24, 808, 815, 826, 835, 1010, 1246. The ALJ further relied on a report by Versie Slay, M.D., a consultative examiner, whose March 18, 2017, examination revealed mostly normal findings with only a few abnormalities consistent with the limitations included in the RFC. Tr. 26-27, 545-48. Additionally, the ALJ pointed to the opinions of three state-agency medical consultants whose limitations were also consistent with Plaintiff's ability to perform light work. Tr. 27, 84-85, 100-02, 585. Finally, the ALJ relied on what he described as “routine, conservative treatments” to which Plaintiff frequently reported improvement without adverse side effects. Tr. 26. This finding is also supported by the medical records.
Concerning his mental impairments, the ALJ noted that other than a prescription for Zoloft from his rheumatologist, Plaintiff had no psychiatric or mental health treatment. Tr. 19-20. The ALJ further noted the lack of “objective psychiatric abnormalities” in Plaintiff's treatment records. Tr. 20. As examples, the ALJ cited Dr. Masseoud's visit notes, stating they “repeatedly described [Plaintiff] as pleasant with intact orientation and alertness.” Tr. 20; see, e.g., Tr. 812. The ALJ also referred to a May 25, 2018, visit note- in which Plaintiff was described as having an appropriate mood and affect-as an example of normal findings by Plaintiff's family physician. Tr. 20, 1207. Further, the ALJ discussed the findings of Harvey Gayer, PhD., a consultative psychological examiner, who examined Plaintiff on May 16, 2017, and three state agency psychological consultants, who reviewed Plaintiff's records, as support for his conclusion that Plaintiff's mental impairments were not severe. Tr. 20-21, 82, 97-98, 555-61, 586. Therefore, substantial evidence supports the ALJ's credibility determination.
B. Mental Impairment
Consultative examiner Dr. Gayer, a licensed psychologist, concluded that Plaintiff met the criteria for a diagnosis of major depressive disorder. Tr. 560. Plaintiff alleges that the ALJ erred in assessing no depression-related functional restrictions or mental or cognitive impairments in the final RFC determination despite assigning great weight to Dr. Gayer's opinion. Pl.'s Br. 10. Plaintiff characterizes Dr. Gayer's opinion as being that Plaintiff would
have difficulty understanding and remembering detailed instructions but not simple instructions [and] had low verbal comprehension on testing . . . mild difficulty interacting appropriately with others due to social avoidance secondary to depression [], and mild difficulty responding appropriately to work stressors and changes in routine due to depressed mood.Pl.'s Br. 12. Plaintiff argues that the ALJ erred “in both failing to find depression as a severe impairment and in failing to consider the functional effect of the depression.” Id. At 11.
Plaintiff's argument fails for two reasons. For one, Dr. Gayer's depression diagnosis alone does not mandate inclusion of mental limitations in the RFC. See Wind v. Barnhart, 133 Fed.Appx. 684, 690 (11th Cir. 2005) (per curiam) (“However, a diagnosis or a mere showing of ‘a deviation from purely medical standards of bodily perfection or normality' is insufficient; instead, the claimant must show the effect of the impairment on her ability to work.” (quoting McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.1986))). Second, Plaintiff mischaracterizes Dr. Gayer's opinions. Dr. Gayer actually opined that Plaintiff would “have no to mild difficulty understanding and remembering detailed instructions” and that he had “low average verbal comprehension.” Tr. 560 (emphasis added). Dr. Gayer also concluded that Plaintiff “may have mild difficulty interacting appropriately with others” but “did not show difficulty sustaining attention during the evaluation, and therefore appears likely to have no difficulty sustaining attention for developmentally appropriate lengths of time.” Tr. 560 (emphasis added). Dr. Gayer also stated that Plaintiff's “ability to respond to normal work stressors and changes in routine may be mildly limited given his mood concerns.” Tr. 560 (emphasis added). Dr. Gayer's prognosis for Plaintiff was “fair to good” with Plaintiff's symptoms likely to improve with appropriate intervention. Tr. 560. Therefore, contrary to Plaintiff's argument, Dr. Gayer's opinion does not demand a finding of severe impairment related to his depression, and the ALJ's omission of depression-related limitations from the RFC is supported by substantial evidence.
In his reply brief, Plaintiff raises a new argument. For the first time he contends that ALJ's RFC analysis was deficient because while the ALJ found Plaintiff to have non-severe mental impairments of depression and generalized anxiety disorder with mild limitations in concentrating, persisting, or maintaining pace, interacting with others, and adapting or managing oneself, the decision contains no explanation as to why any related restrictions were excluded from the RFC. Pl.'s Reply Br. 3-6; see Schink v. Comm'r of Soc. Sec., 935 F.3d 1245, 1268-70 (11th Cir. 2019) (concluding that the ALJ's RFC assessment was deficient because without a discussion of how plaintiff's non-severe mental impairments affected his ability to do past work, a reviewing court could not determine if the ALJ conducted the proper legal analysis). In support of his contention that his mild mental limitations should have been included in the RFC, Plaintiff cites the opinions of state agency psychologists Denise Glanville, Spurgeon Cole, and Kevin Donovan, who noted mild mental limitations in their paragraph B findings. Pl.'s Reply Br. 4; Tr. 82, 97, 586.
Plaintiff did not raise this issue in his initial brief. In his initial brief, his only complaint regarding mental impairment concerned the ALJ's treatment of Dr. Gayer's depression diagnosis. Plaintiff did not even mention Drs. Glanville, Cole, or Donovan, and he did not allege that the ALJ had failed to discuss mental impairment in his RFC analysis. In fact, Plaintiff stated in his initial brief that the ALJ “noted” Plaintiff's mild mental limitations “in support of his RFC.” Pl.'s Br. 13. “Arguments not properly presented in a party's initial brief or raised for the first time in the reply brief are deemed waived.” In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009).
Furthermore, when reading the ALJ's decision as a whole, it is clear that he considered Plaintiff's non-severe mental impairments in formulating the RFC. The ALJ concluded, at step two, that Plaintiff had medically determinative, but non-severe, impairments of depression and generalized anxiety disorder. Tr. 19. He also found some mild limitations in his paragraph B analysis. Tr. 19. However, he noted that Plaintiff “alleged no specific symptoms or limitations resulting from his mental impairments” at the hearing but instead “testified that his pain and medications cause problems with concentration.” Tr. 19, 49, 52, 58. The ALJ's step-two analysis cited the opinions of Drs. Glanville, Cole, and Donovan, who remarked that Plaintiff has no psychiatric depression diagnosis and attributed Plaintiff's paragraph B mental limitations to pain. Tr. 20, 82, 97-98, 250, 586. Next, in his RFC analysis, the ALJ recounted Plaintiff's testimony concerning the effects of pain medication on his ability to concentrate. Tr. 23. The ALJ accepted that Plaintiff's medically determinable impairments-which included his non-severe mental impairments-could reasonably be expected to cause his alleged symptoms. Tr. 23. The ALJ concluded, however, that the “claimant's statements concerning the intensity, persistence and limiting effects” of his symptoms were not consistent with the record evidence and that the objective medical evidence did not “show the severity of findings to support greater limitations” in the RFC. Tr. 23. The medical evidence cited by the ALJ included Plaintiff's report to medical providers that his medications helped him and caused no side effects and another report that he only used hydrocodone sporadically. Tr. 24. The ALJ noted this was inconsistent with Plaintiff's hearing testimony. Tr. 24. Therefore, the ALJ's decision as a whole is sufficient to show that he considered Plaintiff's non-severe mental impairments in his RFC assessment.
Plaintiff was prescribed Zoloft by Dr. Masseoud, his rheumatologist, but as noted by the ALJ, he received no other mental health treatment. Tr. 19-20. The Court also notes that in his response to the fibromyalgia RFC questionnaire, Dr. Masseoud responded negatively to a question asking if “emotional factors contribute to the severity of your patient's symptoms and functional limitations.” Tr. 588. Further, the Court does not see-and Plaintiff does not cite to any part of the transcript-where Dr. Masseoud referred Plaintiff for psychiatric treatment.
C. Dr. Masseoud
Plaintiff contends that the ALJ did not properly weigh the opinion of his treating rheumatologist, Dr. Dania Masseoud, M.D. Pl.'s Br. 13-17. In support, he cites two preprinted forms completed by Dr. Masseoud wherein he indicated that Plaintiff had extreme limitations that restricted him to less than sedentary work. Pl.'s Br. 13; Tr. 588-91, 1299-1303. Under the regulations applicable to Plaintiff's claim, the ALJ was required to give controlling weight to a treating source's opinion on the nature and severity of an impairment if it “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). An ALJ must “give good reasons” for rejecting a treating physician's opinion. Id. However, “a treating physician's report ‘may be discounted when it is not accompanied by objective medical evidence or is wholly conclusory.'” Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (per curiam) (quoting Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir.1991)).
Here, the ALJ provided good reasons for giving Dr. Masseoud's opinions “little weight.” Tr. 27. He stated that these opinions were “grossly inconsistent with Dr. Masseoud's treatment records and the other medical evidence of record.” Tr. 27-28. He noted that Dr. Masseoud's records “showed mostly normal and mild findings on objective examinations, medical imaging, and laboratory testing” along with “routine, conservative treatments” and that Plaintiff “frequently reported improved symptoms with those treatments and without adverse side effects.” Tr. 28. The ALJ's in-depth discussion of Dr. Masseoud's opinions and treatment of Plaintiff was supported by numerous citations to the medical record. Tr. 23-26. Plaintiff does not raise any specific challenges to the ALJ's reasons for giving little weight to Dr. Masseoud's opinions but only argues that it should have been given more weight. As the ALJ's reasons are supported by substantial evidence, however, this Court must affirm the Commissioner's decision.
II. New Evidence
Plaintiff contends a remand is warranted under sentence six of 42 U.S.C. 405(g) based on new evidence. Pl.'s Br. 17-26. Plaintiff has also filed a separate motion for remand requesting the same relief (ECF No. 13). For new evidence to warrant remand under sentence six, a Plaintiff must show that
(1) there is new, noncumulative evidence; (2) the evidence is ‘material,' that is, relevant and probative so that there is a reasonable possibility that it would change the administrative result, and (3) there is good cause for the failure to submit the evidence at the administrative level.Hunter v. Comm'r of Soc. Sec., 808 F.3d 818, 821 (11th Cir. 2015) (quoting Caulder v. Brown, 791 F.2d 872, 877 (11th Cir. 1986)). The plaintiff must satisfy each of these elements. See 42 U.S.C. 405(g). “For the evidence to be material there must be a reasonable possibility that it would change the administrative result. The evidence also must be chronologically relevant, meaning it must relate to the period on or before the date of the ALJ's decision.” Lindsey v. Comm'r of Soc. Sec., 741 Fed.Appx. 705, 710 (11th Cir. 2018) (per curiam) (internal citations omitted). “The good cause requirement is satisfied when the evidence did not exist at the time of the administrative proceedings. If, however, the claimant could have obtained the evidence sooner, good cause is not shown.” Arnold v. Comm'r of Soc. Sec., 724 Fed.Appx. 772, 781-82 (11th Cir. 2018) (per curiam) (internal citations omitted).
Plaintiff identifies three categories of “new” evidence. The first category consists of MRIs, including those obtained on March 13, 2020, June 16, 2020, and December 22, 2020. Pl.'s Br. 21-24. Regarding the March 13, 2020, MRI of the lumbar spine, Plaintiff emphasizes the finding of “degenerative changes greater at ¶ 5-S1 where there is severe foraminal stenosis bilaterally.” Id. at 21-22; Pl.'s Ex. 1, at 45-46, ECF No. 17-1. The December 22, 2020, MRI of the lumbar spine was post-anterior lumber interbody fusion (“ALIF”) surgery and showed incomplete decompression at ¶ 5-S1. Pl.'s Ex. 1, at 49; Pl.'s Ex. 2, Part 2, at 25, ECF No. 17-8. The June 16, 2020, MRI is of the left hip, and Plaintiff does not specify the finding he believes significant, though it shows “mild hip joint degeneration including [a] nondisplaced superior labral tear.” Pl.'s Ex. 1, at 46-47. Plaintiff contends these MRIs are material because they provide the objective evidence the ALJ found lacking in his decision. Pl.'s Br. 21.
The second category of evidence is medical treatment Plaintiff received, beginning with a June 3, 2020, visit to Dr. Shashikant Patil, M.D., a neurosurgeon, who noted that Plaintiff presented with “an eight year history of gradually worsening low back pain which has now become severe and constant.” Pl.'s Ex. 1, at 10. Plaintiff's course of treatment included, inter alia, the above-mentioned August 2020 ALIF surgery and a January 2021 L5-S1 lumbar laminectomy and posterior lateral fusion surgery. See generally Pl.'s Exs. 1-2.
The third category of evidence is new opinion evidence in the form of a March 1, 2021 “to whom it may concern” letter written by Dr. Patil, which states in its entirety:
Based on [Plaintiff's] MRI[s] and medical degree of certainty, my opinion is that the patient's recent surgeries can be attributed to his spine disorders which has been existence [sic] since early 2016 (and even earlier). Theseconditions have caused significant pain, which preclude him from being able to continue to work at even the sedentary level of exertion.
Pl.'s Ex. 3, ECF No. 17-14. Plaintiff contends these latter two categories of evidence also provide objective support for Plaintiff's claims and could alter the ALJ's credibility determinations of his pain complaints. Pl.'s Br. 21, 25.
The Court disagrees that the evidence submitted by Plaintiff warrants a sentence-six remand. For one, as it applies to the March 13, 2020, MRI, it was in existence prior to the Appeals Council decision of May 22, 2020. Tr. 1-6; Pl.'s Ex. 1, at 45-46. Plaintiff has not explained why he failed to submit this to the Appeals Council, and so, he cannot meet the good cause element for this document. See Lindsey v. Comm'r of Soc. Sec., No. 2:16-cv-317-FtM-MRM, 2017 WL 4174307, at *1-2, 11 (M.D. Fla. Sept. 21, 2017) (finding no good cause where records that came into existence after the ALJ decision but prior to the Appeals Council decision and the plaintiff failed to submit them during the administrative process), affirmed by Lindsey, 741 Fed.Appx. at 711. As for the December 2020 MRI, it is largely cumulative to the March 2020 MRI regarding degenerative changes in the lumbar spine and follows the August 2020 surgery. The remaining findings in the MRIs appear relatively unremarkable.
Additionally, the new evidence is not chronologically relevant as it involves treatment and examinations occurring after the ALJ's decision. See Hargress v. Comm'r of Soc. Sec., 883 F.3d 1302, 1309 (11th Cir. 2018) (per curiam) (“New evidence is chronologically relevant if it ‘relates to the period on or before the date of the ALJ's hearing decision.'” (quoting 20 C.F.R. § 404.970(b), 416.1470(b) (2016))); Downing v. Comm'r of Soc. Sec., 856 Fed.Appx. 822, 824 (11th Cir. 2021) (per curiam) (finding that MRI taken subsequent to the ALJ's decision was not chronologically relevant as the “report's findings and impressions appear to pertain only to the date the scan occurred”).
As for Dr. Patil, a physician's “opinions based on treatment occurring after the date of the ALJ's decision may be chronologically relevant.” Washington v. Comm'r of Soc. Sec., 806 F.3d 1317, 1322 (11th Cir. 2015) (per curiam). In order for this exception to apply, however, 1) the plaintiff must have described his symptoms during the relevant time period to the physician, 2) the physician must have reviewed the medical records from the relevant time period, and 3) there must be no evidence of deterioration in the plaintiff's condition since the ALJ's decision. See Hargress, 883 F.3d at 1309-10 (distinguishing Washington). Here, there is no evidence that Dr. Patil treated Plaintiff during the relevant time period or reviewed or relied on his medical records from that time. Moreover, Dr. Patil's first visit with Plaintiff noted “gradually worsening low back pain which has now become severe and constant, ” indicating a decline in Plaintiff's condition since the ALJ's decision. Pl.'s Ex. 1, at 10.
Moreover, the new evidence is not material. Regarding the MRI imaging, even if it could be deemed to provide some indication of what an MRI of Plaintiff's lumbar spine would have shown in July 2019, medical imaging was just one of several items of objective evidence the ALJ cited in his decision. In fact, while the ALJ discussed mild findings on imaging, he also acknowledged that there was no imaging after 2013. Tr. 25. Nevertheless, the ALJ determined that Plaintiff had a severe impairment of degenerative disc disease and assigned limitations to Plaintiff's RFC accordingly. The ALJ relied primarily on other objective evidence, including Plaintiff's statements to his medical providers, unremarkable physical examinations, and conservative treatment to conclude that greater limitations in the RFC than those identified were not warranted. Tr. 23-26. The imaging results do not affect this contemporaneous objective evidence.
As for the new evidence as a whole, it simply indicates that Plaintiff's degenerative disc disease deteriorated after the ALJ's decision and is irrelevant to the initial denial of benefits. See Archer v. Comm'r of Soc. Sec., 176 Fed.Appx. 80, 82-83 (11th Cir. 2006) (per curiam) (“The medical evidence may be relevant to deterioration, but it is not clear that it is relevant to the initial denial of benefits, as this court does not consider ‘implicit' conclusions that the medical condition existed for an extended period of time that would cover the period of disability before the ALJ.” (quoting Wilson v. Apfel, 179 F.3d 1276, 1279, nn. 4-5 (11th Cir.1999))). The Court, therefore, recommends that Plaintiff's request for a remand under sentence six be denied and that his motion for remand (ECF No. 13) also be denied.
CONCLUSION
For the foregoing reasons, it is recommended that the Commissioner's decision in this case be affirmed and that Plaintiff's motion for remand (ECF No. 13) be denied. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy thereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.