Georgia Cases May 03, 2022: R.J.O. v. Comm'r of Soc. Sec.

Case Description

1

Social Security Appeal

REPORT AND RECOMMENDATION

CHARLES H. WEIGLE UNITED STATES MAGISTRATE JUDGE

This is a review of a final decision of the Commissioner of Social Security denying Plaintiff R.J.O.'s application for benefits. As discussed below, substantial evidence supports the ALJ's decision, and a remand to consider additional evidence is unwarranted. Accordingly, it is RECOMMENDED that the Commissioner's decision in Plaintiff's case be AFFIRMED .

BACKGROUND

Plaintiff applied for Title II disability benefits on September 6, 2019, alleging disability beginning on February 26, 2019, based on PTSD, sleep apnea, anxiety, depression, and a heart condition. (Ex. 2D; R. 62). Plaintiff is insured through September 30, 2024. (R. 62). After Plaintiff's application was denied initially and on reconsideration at the state agency levels of review (Exs. 1A-4A, 1B, 3B), Plaintiff requested further review before an administrative law judge (ALJ). The reviewing ALJ held a hearing on January 8, 2021 (R. 37-60), and then issued an unfavorable opinion on March 3, 2021. (R. 17-36). Plaintiff's request for review of that decision by the Appeals Council was denied on June 11, 2021. (R. 1-6). The case is now ripe for judicial review. See 42 U.S.C. § 405(g).

2

STANDARD OF REVIEW

Judicial review of a decision of the Commissioner of Social Security is limited to a determination of whether that decision is supported by substantial evidence, as well as whether the Commissioner applied the correct legal standards. Winschel v. Comm'r of Soc. Sec. , 631 F.3d 1176, 1178 (11th Cir. 2011). “Substantial evidence” is defined as “more than a scintilla,” and as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The Eleventh Circuit has explained that reviewing courts may not decide the facts anew, reweigh the evidence, or substitute their judgment for that of the Commissioner. Id. Rather, if the Commissioner's decision is supported by substantial evidence, the decision must be affirmed even if the evidence preponderates against it.

EVALUATION OF DISABILITY

Social Security claimants are “disabled” if they are unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). Plaintiff remains insured until September 30, 2024, so he must establish disability before that date. See id.

The Social Security Regulations outline a five-step sequential evaluation process for determining whether a claimant is disabled: “(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of impairments; (4) based on a residual functional capacity (“RFC”) assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that

3

the claimant can perform given the claimant's RFC, age, education, and work experience.” Winschel , 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v)).

MEDICAL RECORD

Plaintiff's medical record comprises of treatment from several providers, including treatment at local hospitals, a Veteran Affairs (VA) clinic, and Emory Healthcare. The treatment primarily represented throughout the record covers Plaintiff's heart and mental health conditions. The record also includes function reports completed by Plaintiff and his wife.

Treatment records from the VA reflect routine treatment for primary care and mental health issues since at least 2018. See generally (Exs. 2F, 4F, 5F, 9F, 11F). The record also reflects that Plaintiff received a 70% service-connected disability rating through the VA, effective May 6, 2019. (Ex. 1D). Records reflect a series of prescribed medications for Plaintiff. See, e.g., (R. 369-370, 720-721). In August 2019, Plaintiff reported continued issues with involuntary movement and pain in his legs. (R. 366). He also reported improvement with medication for PTSD and depression. (R. 367-368). On September 3, 2019, Plaintiff primarily complained of radiating low back pain. (R. 357). High cholesterol was noted, and providers requested an echocardiogram to assess possible left ventricle hypertrophy. (R. 358). Plaintiff agreed to telehealth appointments for PTSD. (R. 357-358). Plaintiff also received a referral to follow-up with a cardiologist. (R. 358).

Plaintiff presented to the emergency room (ER) at Houston Healthcare on September 17, 2019, with complaints of increased chest pain accompanied by shortness of breath. (R. 297). Plaintiff reported having had “intermittent chest pain” for a year, but it had worsened two hours prior to going to the ER. ( Id .) Plaintiff also relayed history of uncontrolled cholesterol, heart murmur, PTSD, and a diagnosis of a thickened heart wall. (R. 311, 316). His heart sounds were

4

normal upon examination. (R. 300). Initial testing showed elevated troponin levels and an EKG showed diffuse T-wave inversions. (R. 315). In order to determine whether he had suffered a heart attack, Plaintiff was admitted to conduct a heart cath. (R. 309, 318). The heart cath showed issues with Plaintiff's left ventricle, and providers referred Plaintiff to a hospital at Emory as an outpatient for treatment for hypertrophic cardiomyopathy. (R. 323-325).

Plaintiff visited Dr. Karim at Cardiac Consultants of Central Georgia on September 26, 2019, based on the referral from the VA and as follow-up to treatment at Houston Healthcare. (R. 404). Plaintiff described having had ongoing chest pain for five years. ( Id .) Having confirmed an abnormality in Plaintiff's ventricular outflow tract while a part of his treatment team at Houston Healthcare, Dr. Karim also assisted to refer Plaintiff to Emory for further treatment. ( Id .) The VA incorporated this referral into its records. (R. 443-444).

Prior to his referral appointment at Emory, Plaintiff presented to the Medical Center ER in January 2020 with complaints of radiating chest pain and shortness of breath accompanied by chills and night sweats. (R. 551). After examination and review of the results of his Houston Healthcare visit, treatment providers believed there was low likelihood of a coronary event. (R. 552). However, Plaintiff was admitted for monitoring and to confirm or rule-out pneumonia. (R. 552, 556). Testing confirmed the previous ventricular hypertrophy diagnosis and showed possible multifocal pneumonia. (R. 562-563). Upon discharge, Plaintiff was encouraged to follow-up with his primary care physician and to keep his appointment at Emory, which was scheduled for February 2020. (R. 443, 566-567).

Plaintiff visited Dr. Williams, a cardiologist, at Emory Healthcare on February 11, 2020. (R. 458). After this first visit, Dr. Williams confirmed that Plaintiff had hypertrophic cardiomyopathy. (R. 459). Dr. Williams adjusted Plaintiff's medication and found that he was

5

likely a candidate for septal reduction therapy and placement of an internal cardiac defibrillator. ( Id ., R. 462). Dr. Williams also noted that Plaintiff's condition was associated with arrythmia and sudden cardiac death. (R. 462). Plaintiff visited Dr. Kalim again for a hospital follow-up on March 26, 2020, and reported similar, yet unchanged, symptoms from his heart condition. (Ex. 8F). A cardiac MRI performed at Emory in May 2020 showed “severe, asymmetric left ventricular hypertrophy ...measuring up to 2.6 cm,” “evidence of LVOT obstruction,” and other findings “consistent with hypertrophic cardiomyopathy.” (R. 502-504). An echocardiogram was consistent with the MRI findings. (R. 506-508). Dr. Attia, another cardiologist at Emory, examined Plaintiff upon referral from Dr. Williams and determined that Plaintiff was a candidate for septal myectomy. (R. 700).

Plaintiff underwent septal myectomy and pacemaker implementation in June 2020 at Emory. See generally (R. 685). At a post-op appointment in July 2020, Plaintiff reported “doing great” despite chest wall pain with sneezing and coughing. (R. 685). He reported no chest pain or shortness of breath with exertion. ( Id .) The pacemaker was functioning properly. (R. 686). Dr. Williams limited Plaintiff to light to moderate exercise with no competitive or strenuous activity. ( Id .) Plaintiff was also restricted from lifting anything greater than 10 pounds until 2 months post-op and 25 pounds until 3 months post op. (R. 696). After 3 months, Plaintiff would have no restrictions. ( Id. ) In September 2020, Plaintiff complained about worsening incisional pain despite the wound itself being completely healed. (R. 681). Dr. Attia at Emory diagnosed Plaintiff with a low-grade infection and prescribed an antibiotic. (R. 682). Dr. Attia also increased Plaintiff's dosage of gabapentin. ( Id. ) The results of this follow-up were sent to Dr.

6

Williams. ( Id .) This September 2020 treatment note is the last treatment at Emory contained in the record.

The record also contains other treatment at the VA. An October 2019 MRI of Plaintiff's back showed mild broad-based disc bulge at ¶ 5-S1. (R. 428). In November 2019, Plaintiff missed a counseling appointment. (R. 442). In notes from his call apologizing for the mistake, he reported doing well on his medication despite ongoing medical issues. ( Id .) At a February 2020 counseling appointment, Plaintiff reported additional life stressors accompanying his recent hypertrophic cardiomyopathy diagnosis. (R. 482). No notations reflect issues with Plaintiff's mood, affect, or thought process. ( Id. ). Similar concerns about housing and additional family stressors were noted at a counseling appointment in July 2020, but medications continued to manage his symptoms. (R. 646-647). Plaintiff reported increased insomnia following his heart surgery. (R. 647).

Throughout Spring 2020, Plaintiff continued to treat at and receive his medications through the VA as a follow-up for his heart condition, along with his treatment at Emory. (R. 472-475). At a June 2020 visit, Plaintiff stated that he was “recovering alright” with significantly improved chest pain. (R. 671). Plaintiff's bloodwork presented elevated concerns about his triglycerides and onset of diabetes. (R. 673). He continued to complain of back pain. (R. 675676). In September 2020, Plaintiff described his mental health as good with no complications in his mood or sleep. (R. 724). His next appointment was scheduled for March 2021, which was after the ALJ hearing date. (R. 725).

The treatment record includes several instances where treatment providers encouraged Plaintiff to quit smoking. (R. 359, 364-365, 404, 459-460, 464, 479, 525-526, 552, 686). Plaintiff, at times, indicated that he was not interested in receiving a prescription to aid quitting

7

or additional information about cessation options. (R. 359, 364-365). However, by May 2020, notes indicate that Plaintiff was using nicotine patches to help him to quit smoking. (R. 518). Plaintiff reported reduced cigarette use after his heart surgery. See, e.g. , (R. 696).

Plaintiff's wife, then fiance, completed a third-party function report in October 2019. (Ex. 5E). At that time, Plaintiff lived with her and with their respective children. (R. 207). She reported that most days with Plaintiff were spent reading and watching TV. ( Id. ) She described Plaintiff's trouble sleeping, needing frequent naps, and effects of PTSD and depression on his mood and temper. ( Id .) She described that Plaintiff once cooked for them daily but that her daughter had assumed that task. (R. 209). No daily chores were attributed to Plaintiff except for sometimes helping with laundry because of Plaintiff's pain levels and fatigue. (R. 208-209). She described Plaintiff as needing encouragement for the activities he assisted her with because Plaintiff lacked motivation. (R. 209). She attributed Plaintiff's fatigue, back pain, shortness of breath, and heart related issues to his not completing house or yard work. (R. 210). When Plaintiff did leave their home, it usually involved going to church or out to eat one to two times per week. (R. 211). She stated that the physical symptoms that Plaintiff experienced, such as his chest pain, increased his anxiety and depression. (R. 212). She acknowledged Plaintiff's stress and fear surrounding his cardiomyopathy diagnosis. (R. 213). When prompted to check boxes of functioning areas which were affected by Plaintiff's condition, she checked every box except for seeing, understanding, and using hands. (R. 212).

During the benefits application process, Plaintiff completed two function reports. (Ex. 6E, 15E). Plaintiff's first function report largely echoed the one his wife completed. (Ex. 6E). Plaintiff further described his chest pain as severe with any type of exertion. (R. 215). He mentioned doing additional activities such as shopping or picking up his daughter from work.

8

(R. 216). Plaintiff attributed declining energy to not being able to complete daily chores like he had in the past, but he stated that he helped fold laundry. ( Id ., R. 217). He admitted needing reminders for daily activities such as grooming or taking medications. (R. 217). He also described a lack of motivation and a general inability to do house or yard work due to his chest pain, fatigue, and depression. (R. 217-218). He described going outside daily and being able to go out alone despite preferring company because of his anxiety. (R. 218). He also described going out to eat or attending church one to two times a week. (R. 219). Plaintiff checked that his conditions affected only lifting, walking, and concentration. (R. 220). He described only being able to walk a few minutes before needing a break. ( Id. )

Plaintiff's May 2020 function report was more limited. (Ex. 15E). Plaintiff asserted that he was unable to work or to exert himself in any way because of his heart condition. (R. 252). He restricted his daily activities to watching TV and sleeping a lot. (R. 253). He stated that his children or other hired help performed house and yard work. (R. 254). Plaintiff explained that he rarely goes outside and does not go out alone because he experiences dizziness when walking. (R. 255). He further restricted shopping for things like groceries to two-hour trips with frequent rests and explained he hardly had been anywhere in two months. (R. 255-256). He repeated that he falls asleep easily during the day and is no longer the person he was because of his conditions. (R. 256-257). When asked what abilities are limited by his conditions, he checked more limitations than on the October 2019 report, but not as many as in his wife's report. (R. 212, 257). He explained his heart surgery and belief that his heart would never function normally. (R. 259).

Plaintiff also discussed his general condition and limited abilities at the hearing before the ALJ. Plaintiff explained his pre-surgical symptoms and complications he experienced at

9

previous jobs. (R. 45-47). He then recounted his June 2020 heart surgery and resulting hospital stay. (R. 47-48). He described continuing to experience tightness in his chest, inability to sit or stand for long periods of time, daily chest pain, and having to take multiple naps per day. (R. 48). He stated that he is only able to stand for 10-15 minutes. (R. 50). Plaintiff stated that his wife often notices when he is struggling and urges him to rest, which Plaintiff contends is the only way to relieve his symptoms. (R. 49). He continues to experience his pre-surgery symptoms, but they are not as intense since the surgery. (R. 49-50). Plaintiff testified that he still has moments where he struggles with his PTSD, depression, and anxiety, but he noted that his medications help “for the most part.” (R. 52-54).

Plaintiff submitted two letters from Dr. Williams with his brief. (Docs. 9-2, 9-3). A letter from July 15, 2021, confirms that Dr. Williams began treating Plaintiff in February 2020 for hypertrophic cardiomyopathy. (Doc. 9-2). Dr. Williams discusses Plaintiff's June 2020 heart surgery and his current symptoms, including shortness of breath and dizziness with exertion and fatigue. ( Id. ) Dr. Williams wrote a November 17, 2021 letter to supplement the prior one. (Doc. 9-3). Dr. Williams explained that he expected Plaintiff's heart condition and ongoing symptoms to limit Plaintiff's ability to work because Plaintiff would need to rest at least one half of a workday. ( Id .) He does not expect Plaintiff's condition to significantly improve. ( Id .)

DISABILITY EVALUATION IN PLAINTIFF'S CASE

Following the five-step sequential evaluation procedure, the reviewing ALJ made several findings in Plaintiff's case. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 26, 2019. (R. 21). At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative lumbosacral disc disease; hypertrophic cardiomyopathy status post myectomy and pacemaker placement; coronary artery

10

disease; hypertension; dyslipidemia; diabetes mellitus; obesity; obstructive sleep apnea; posttraumatic stress disorder; and depressive disorder. ( Id .) He found that Plaintiff's hearing loss, tooth extraction, and cannabis use were non-severe because they have not “caused him significant or sustained functional limitations.” (R. 22).

At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. ( Id. ) The ALJ also evaluated the severity of Plaintiff's mental impairments at step three and found them to cause Plaintiff only mild or moderate limitations. (R. 22-23). Therefore, the ALJ assessed Plaintiff's RFC, and found that Plaintiff could perform sedentary work with the following exceptions:

• He should never climb ladders, ropes or scaffolds, but he can occasionally climb ramps and stairs, and he can occasionally balance, stoop, kneel, crouch, and crawl;

• He can have occasional exposure to unprotected heights, moving mechanical parts, humidity, wetness, and extreme cold and extreme heat;

• He can have occasional exposure to dust, odors, fumes and pulmonary irritants;

• He can perform simple, routine, repetitive tasks involving up to detailed, but uninvolved instructions (reasoning level of 2);

• He can have occasional interaction with co-workers, supervisors, and the public; and

• He can work with occasional changes in a work setting.

(R. 23).

After determining Plaintiff's RFC, the ALJ found that Plaintiff was unable to perform any past relevant work. (R. 29). After hearing from a vocational expert, reviewing the record, and considering Plaintiff's age, education, work experience, and RFC, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (R.

11

30). Some of the representative positions noted were cuff folder, label pinker, and sack repairer. ( Id .) Accordingly, the ALJ ruled that Plaintiff was not disabled within the meaning of the Social Security Act from February 26, 2019, through the date of his decision. (R. 31).

ANALYSIS

Plaintiff argues that substantial evidence does not support the denial of Plaintiff's disability claim because “the ALJ improperly relied on Plaintiff's daily activities” when determining Plaintiff's RFC. (Doc. 9-1, p. 8). Plaintiff also asserts that the two letters from Dr. Williams are new and material evidence which warrant remanding Plaintiff's case. Neither of these grounds provides a basis for remanding Plaintiff's case.

1. The ALJ did not improperly rely upon Plaintiff's daily activities when determining his RFC and work capability .

Plaintiff argues that the ALJ improperly relied upon Plaintiff's daily activities to negate his subjective symptoms and then find Plaintiff was capable of sustained work activity. (Doc. 91, p. 10-12). Plaintiff contends that his infrequent trips out of the home and sedentary activities, such as playing video games or occasionally folding laundry, do not support the assessed sedentary RFC. ( Id .) Plaintiff further argues that the emphasis placed on these activities is inconsistent with full time work and, therefore, that substantial evidence does not support the Commissioner's decision. ( Id .)

Neither party has suggested that the ALJ applied incorrect legal standards or treated the medical record and opinion inappropriately in this case. Neither party has argued that the ALJ failed to articulate the reasons for his decision with particularity as required. See Winschel , 631 F.3d at 1179. Instead, Plaintiff argues that the ALJ incorrectly assessed Plaintiff's symptoms and limitations in terms of his daily activities. As a threshold matter, the ALJ correctly identified and applied the applicable legal standards. Although Plaintiff disagrees with the ALJ's evaluation of

12

his ability to work, the decision adequately explains the findings and conclusions based on the entire record and not solely on Plaintiff's daily activities. The decision is supported by substantial evidence.

In determining that Plaintiff was capable of a sedentary RFC, the ALJ considered the entire record. (R. 23-29). After determining that Plaintiff's medically determined impairments could reasonably be expected to produce the alleged pain and symptoms, the ALJ found that Plaintiff's statements about the intensity, persistence, and limiting effects of his symptoms were not entirely consistent with the evidence. (R. 24). The ALJ specifically stated that Plaintiff's description of his symptoms was less persuasive than the clinical findings and that “his daily activities demonstrate that he is capable of sedentary, simple work.” ( Id .) Plaintiff asserted that he mostly sits all day and must nap throughout the day, sometimes taking three naps per day. (R. 48). Plaintiff's function reports demonstrate a decline in his abilities in the months before they were completed. (Exs. 6E, 15E). Symptoms such as chest pain, shortness of breath, fatigue, anxiety, and PTSD complications are noted throughout the record. Yet, as discussed by the ALJ, the severity and limitations that Plaintiff assigns to his condition are not supported by the clinical record.

The ALJ thoroughly discussed the administrative and the treatment record. (R. 24-29). He detailed Plaintiff's treatment leading to his hypertrophic cardiomyopathy diagnosis and resulting surgery. (R. 25-26). The ALJ correctly cited that Plaintiff's treatment records advised against strenuous activity but allowed him to perform light to moderate exercise. (R. 25). He also correctly noted that Dr. Williams' letter written prior to surgery did not place any specific limitations on Plaintiff's activity or work capability. (Doc. 25-26, Ex. 7F). The ALJ also discussed Plaintiff's VA physical and mental health treatment records, neither of which supports

13

the limited abilities and activities Plaintiff alleges. (R. 26-28). The ALJ ultimately determined that “there is little indication the claimant's medically determinable impairments have affected his ability to perform activities appropriate to his circumstances in life or to structure a daily routine for himself.” (R. 28). The ALJ again cited post-operative notes that do not limit Plaintiff's activity as severely as Plaintiff alleges. ( Id .) Nothing the ALJ summarized appears to be inconsistent with the medical record, and it is evident that the ALJ did not rely solely on Plaintiff's daily activities in his decision but instead compared Plaintiff's testimony, the function reports, agency summaries, and the medical record. The ALJ fully considered Plaintiff's allegations in light of the medical record and found them inconsistent.

It is undisputed that an ALJ may consider a claimant's daily activities when determining disability claims and the RFC. See generally 20 C.F.R. §§ 404.1512(a), 404.1545(a)(3), 404.1529(c). Plaintiff instead disputes the extent and exclusivity of that consideration by citing Lewis v. Callahan , 125 F.3d 1436 (11th Cir. 1997). The court in Lewis stated that “we [do not] believe that participation in everyday activities of short duration, such as housework or fishing, disqualifies a claimant from disability or is inconsistent with the limitations recommended by Lewis's treating physicians. ” Lewis , 125 F.3d at 1441 (emphasis added). The court went on to find that substantial evidence failed to support the ALJ's decision primarily because the opinions of the claimant's treating physicians overwhelmingly negated the ALJ's consideration of the claimant's daily activities. Id. The ALJ's decision in this case does not present the same issues as Lewis , where treatment record and medical opinion directly supported the claimant's limitations. Plaintiff's clinical records in this case do not provide similar support.

Plaintiff suggests that the ALJ presumed his heart surgery cured him of all symptoms (Doc. 15, p. 3), but the sedentary RFC inherently acknowledges that Plaintiff experiences

14

limitations, even though none of the post-surgical treatment records reflects such severe limitations as the frequent need to nap and rest. The ALJ articulated his reasons for finding Plaintiff's testimony and description of his symptoms less persuasive, and there is no error in the ALJ's review of the record, including the consideration of Plaintiff's activities. See Werner v. Comm'r of Soc. Sec. , 421 Fed.Appx. 935, 939 (11th Cir. 2011) (explaining “the question is not ... whether [the] ALJ could have reasonably credited [claimant's] testimony, but whether the ALJ was clearly wrong to discredit it.”). The ALJ clearly articulated an analysis of the objective treatment record to establish substantial evidence in support of the decision to discount Plaintiff's subjective statements of severity. See Brown v. Comm'r of Soc. Sec. , 677 Fed.Appx. 529, 531-532 (11th Cir. 2017).

2. The letters from Dr. Williams do not warrant remanding Plaintiff's case .

With his brief, Plaintiff submitted two letters from Dr. Williams at Emory. (Doc. 9-2, 93). Plaintiff argues that these two letters, dated July 15, 2021, and November 17, 2021, constitute new, chronologically relevant, and material evidence that warrants remanding his case to the Commissioner for further consideration. (Doc. 9-1, p. 12-14). Plaintiff asserts that the letters address specific topics that the ALJ discounted and that they speak directly to Plaintiff's ability to work. (Doc. 9-1, p. 12-14). The Commissioner counters that the letters do not meet the new evidence requirements necessary for remand and emphasizes that Plaintiff has not shown good cause for not presenting the evidence earlier. (Doc. 13, p. 11-13). While there is no merit to the Commissioner's lack of good cause argument, the newly presented letters do not warrant remanding his case.

When additional evidence is submitted to a district court, “the claimant must establish that: (1) there is new, noncumulative evidence; (2) the evidence is ‘material,' that is, relevant and

15

probative so that there is a reasonable possibility that it would change the administrative result, and (3) there is good cause for failure to submit the evidence at the administrative level.” Caulder v. Bowen , 791 F.2d 872, 877 (11th Cir. 1986) (citations omitted). The Commissioner argues that Plaintiff failed to show good cause for not having produced the letters earlier in the administrative process. Both letters were not written until after the appeals counsel denied reconsideration. As Plaintiff rightly argues, a patient cannot make a doctor provide an opinion letter, and he could not produce something that did not exist earlier. (Doc. 15, p. 7-8). Further, there is no evidence of procrastination in requesting the letters. There is no merit to the Commissioner's argument that Plaintiff should have better explained why he failed to produce the letters during the administrative process. For purposes of evaluating whether the case should be remanded so that the letters may be considered, Plaintiff has met the good cause prong.

Nevertheless, the letters do not warrant remand, because they are not chronologically relevant or material. New evidence is chronologically relevant if it “relates to the period on or before the date of the hearing decision.” See 20 C.F.R. § 404.970(a)(5). Plaintiff argues that Dr. William's letters are chronologically relevant because the letters reflect Dr. Williams's treatment of Plaintiff and his symptoms since February 2020, (Docs. 9-1, p. 13-14; 15, p. 4-5), and the November 2021 letter specifically supplements the July 2021 letter, which incorporates treatment prior to the ALJ decision. (Doc. 15, p. 5). The court is unable to determine if the letters are chronologically relevant because while Dr. Williams attempted to incorporate treatment prior to ALJ decision, it is unclear whether the letter is based solely on the treatment between February 2020 and the ALJ decision or whether it reflects a change in Plaintiff's symptoms and limitations observed through further treatment. See , e.g. , Hargress v. Soc. Sec. Admin., Comm'r , 883 F.3d 1302, 1309

16

(11th Cir. 2018) (affirming the Appeals Council's decision to not review records which consisted of treatment notes after the ALJ's decision).

Plaintiff cites Washington v. Soc. Sec. Admin, Comm'r , 806 F.3d 1317 (11th Cir. 2015), in support of the letters being chronologically relevant. In Washington, evidence from a new psychologist who examined the claimant after the ALJ decision was found to be chronologically relevant because the psychologist reviewed symptoms and treatment records occurring before the ALJ's decision and because there was no assertion or evidence that the claimant's condition had declined since the ALJ decision. Id. at 1322-1323. The Eleventh Circuit limited Washington to the specific facts of the specific circumstances to the case. Id . at 1323. Washington 's limited holding does not support a finding that Dr. Williams's letters are chronologically relevant. While they purport to relate back to prior treatment, the letters are not specific about the time period on which the opinion is based considering the time differences between the last Emory treatment record, the ALJ's decision, and the time the letters were produced. On the face of the letters, Plaintiff has not shown that they are chronologically relevant.

Even if the letters were chronologically relevant, they are not material because the letters are unlikely to change the outcome based on the record as discussed by the ALJ. The July 2021 letter summarizes Plaintiff's somewhat improved symptoms, which are supported by the medical record and were recognized in the ALJ's opinion. The November 2021 letter, however, marks a sharp contrast to any treatment note in the record regarding Plaintiff's condition other than his own testimony. The November 2021 letter corroborates Plaintiff's hearing testimony, which, as discussed above, the ALJ discredited as unsupported by the medical record, and suggests that Plaintiff would need to rest one-half of each workday. Given the record before the ALJ and how the evidence was credited, there is little suggestion that these letters would change the outcome

17

of the hearing decision. Therefore, the letters are not material. There is no basis to remand this case for consideration of the letters from Dr. Williams.

CONCLUSION

Based on the foregoing reasons, it is RECOMMENDED that the Commissioner's decision be AFFIRMED .

OBJECTIONS

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. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. 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 further 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.