Khamjani v. Commissioner of Social Security

Filing 27

OPINION AND ORDER: The Commissioner's decision is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. The Clerk shall enter judgment and close the file. Signed by Magistrate Judge Monte C. Richardson on 5/6/2022. (ADM)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JULIETTE KHAMJANI,
Plaintiff,
v.

CASE NO. 8:20-cv-2153-MCR

ACTING COMMISSIONER OF
THE SOCIAL SECURITY
ADMINISTRATION,
Defendant.
__________________________________/
MEMORANDUM OPINION AND ORDER 1
THIS CAUSE is before the Court on Plaintiff’s appeal of an
administrative decision denying her applications for a period of disability,
disability insurance benefits (“DIB”), and supplemental security income
(“SSI”). Following an administrative hearing held on August 13, 2019, the
assigned Administrative Law Judge (“ALJ”) issued a decision, finding
Plaintiff not disabled from February 8, 2017, the alleged disability onset date,
through September 3, 2019, the date of the ALJ’s decision. 2 (Tr. 11-20, 396-

The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Doc. 22.)
1

Plaintiff had to establish disability on or before December 31, 2021, her date
last insured, in order to be entitled to a period of disability and DIB. (Tr. 11.) The
earliest time that SSI benefits are payable is the month following the month in
which the application was filed. (See 20 C.F.R. § 416.335.)
2

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441.) Based on a review of the record, the briefs, and the applicable law, the
Commissioner’s decision is REVERSED and REMANDED.
I.

Standard of Review

The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings
are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389,
390 (1971). “Substantial evidence is more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th
Cir. 2004). Where the Commissioner’s decision is supported by substantial
evidence, the district court will affirm, even if the reviewer would have
reached a contrary result as finder of fact, and even if the reviewer finds that
the evidence preponderates against the Commissioner’s decision. Edwards v.
Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d
1356, 1358 (11th Cir. 1991). The district court must consider both evidence
that is favorable and evidence that is unfavorable to the decision. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979
F.2d 835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire
record to determine the reasonableness of the Commissioner’s factual
findings).
2

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II.

Discussion
A.

The Parties’ Arguments

Plaintiff argues that the Appeals Council erred in its consideration of
the new evidence submitted shortly after the ALJ’s decision. (Doc. 24.) This
evidence consisted of: (1) an MRI of the lumbar spine from October 8, 2019
(Tr. 447-48); (2) Dr. Thomas Freeman’s progress note from October 16, 2019
(Tr. 443-45); and (3) records of Plaintiff’s lumbar surgery that took place on
November 5, 2019 (Tr. 173-78). (Doc. 24 at 7.) According to Plaintiff, the
Appeals Council erroneously found that the new evidence did not relate to the
period at issue, was not material, and would not have changed the
administrative result. (Id. at 2, 7.) Plaintiff states that the new evidence
was for the same condition and was generated only a few weeks after the
ALJ’s decision. (Id. at 7.)
Plaintiff argues that if the ALJ had known that Plaintiff’s lumbar
impairment was as severe as shown on the October 8, 2019 lumbar MRI, or
that Plaintiff’s pain was as severe as alleged, the ALJ would not have found
her capable of performing her past relevant work or other light-duty work.
(Id.) Plaintiff points out that the ALJ discounted her subjective complaints,
in part, because she had cancelled her back surgery in 2018, but as the
hearing testimony demonstrates, Plaintiff was awaiting her back surgery,
which was performed approximately two months after the ALJ’s decision.
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(Id. at 8.) Plaintiff also points out that the ALJ relied on outdated opinion
evidence from 2017. (Id.)
Defendant responds that the Appeals Council properly denied
Plaintiff’s request for review of the ALJ’s decision. (Doc. 25 at 4.) Defendant
states that the evidence submitted to the Appeals Council included the
following: (1) Dr. Freeman’s records from July 8, 2019 through October 16,
2019; and (2) Tampa General Hospital records from October 28, 2019 through
November 8, 2019. (Id. at 5.) Defendant explains that the Appeals Council
was not required to give a more detailed explanation or to address each piece
of new evidence individually. (Id. at 7.)
Defendant argues that the Appeals Council properly concluded that
there was no reasonable probability that Dr. Freeman’s records would change
the outcome of the decision. (Id. at 5.) Defendant states that “Dr. Freeman
notes the same medical conditions that the ALJ already reviewed and
determined were severe, resulting in an RFC for light work.” (Id. at 7; but see
id. (stating, in the same paragraph, that “Dr. Freeman’s opinion is
inconsistent with the other evidence of record”).)
With regard to the evidence dated after the ALJ’s decision, Defendant
contends that the ALJ properly concluded this evidence did not relate to the
period at issue. (Id. at 5, 7.) To the extent these records show worsening of
Plaintiff’s condition after the ALJ’s decision, Defendant argues, the Appeals
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Council reasonably found these records not chronologically relevant to the
ALJ’s decision. (Id. at 8.) According to Defendant, Plaintiff has failed to
explain how these records show limitations beyond the ALJ’s RFC finding
during the relevant period. (Id.)
B.

Relevant Evidence and Administrative Findings
1.

The Hearing Testimony

Plaintiff appeared at the August 13, 2019 hearing before the ALJ. (Tr.
396.) She testified about her limitations, in relevant part, as follows:
A
. . . I can only stand for an hour, only walk[,] if I have to[,]
for 20 minutes at the most, and sitting is, like, I take a break
after half an hour, and then I lie down and then I sit again,
because my back it’s very, very difficult for me to sit, in a 90
degree position, and my back hurts me really, really bad, because
my surgeon wants me to do the surgery, I postponed it, but I
agreed to do the back surgery. I see him on October 16th, and he
says if I don’t get this back surgery then, I’ll, it’s going to be
worse, and he mentioned paralyzed, and he said it’s unstable.
...
Q
. . . Dr. Freeman . . . wanted you to have surgery actually
quite some time ago?
A
Yes and then I got scared and I cancelled it, but now I see
him again on [the] 16th of October, he wants to do the back
surgery, I go for the MRI [on] September 25th.
Q
Right. He’s insisted all along that you needed it.
A
Yeah, he says because.
Q
But you, but you were scared to have it?
A
Yeah because it’s a very invasive surgery, there’s fusion, -Q
Right.
A
-- you know, -Q
Right.
A
-- screws and rods, it’s a 6-month recovery.
5

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Q
So, but you, you finally decided you’re going to have it?
A
Yeah, I’m going to have it, because[] I can’t -- there’s so
much I can’t do.
Q
Okay. Has your condition changed since, since you left
Houston and . . . came to Florida?
A
It’s gotten worse.
...
Q
How, how, how much worse has it gotten?
A
I’d say about 40% worse.
...
A
Almost 50% worse.
...
Q
Out, out of a typical day, how much time do you spend lying
down?
A
Several hours.
...
Q
Okay, and that’s mainly because of your back?
A
My back and neck and my knee too.
...
A
. . . I have to wear a knee brace . . . all the time, even when
I’m at home . . . . I can’t squat, I can’t sit 90 degrees, I can’t stand
because of my knee, you know, I can’t really sit even, like,
comfortably [be]cause of my knee, and you know, I mean even if I,
my back gets corrected, if it does, ever does, I still can’t stand
because of my knee, my knee is too far gone -Q
Yes.
A
I need a knee replacement.
...
A
I had a knee surgery on my knee, that’s why I was
reluctant, because at this point[,] I don’t know if it’s going to help
because it’s got so much arthritis in it.
Q
When did you have the, the knee surgery?
A
2011, I had the knee surgery.
Q
Okay, and[] so did you get any relief from it at that time?
A
Not much.
...
A

March 29th I had the bunion surgery.
6

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Q
Okay, and how are you recovering from that?
A
It’s been, it’s been a slow process, it’s been four and a half
months, I’m in therapy for it now . . . , but[] it’s very difficult for
me to walk or, or stand too much on my foot, even to put pressure
on it . . . .
...
Q
And, and so taking all those things together, you, you, do
you feel your conditions gotten worse since 2017?
A
Yes, I feel it’s gotten worse.
...
A
. . . I have this upcoming back surgery . . . , it’s very highrisk surgery for me to do, and that’s why I cancelled the first
time, because there’s a very high risk. It’s not easy surgery, so I
just wish I had no injuries . . . .
(Tr. 417-20, 422-25, 427, 433-34.)
2.

The ALJ’s Decision

The ALJ issued her decision on September 3, 2019. (Tr. 20.) At step
one of the sequential evaluation process, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since her alleged disability onset date.
(Tr. 13.) At step two, she found that Plaintiff had the following severe
impairments: degenerative disc disease, degenerative joint disease,
osteoarthritis, obesity, right foot Hallux valgus with other enthesopathy, and
winged scapula. (Id.) At step three, the ALJ found that Plaintiff did not
have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments. (Tr. 15.)
Then, prior to step four, the ALJ found that Plaintiff had the RFC to
perform a reduced range of light work as follows:
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[The claimant has] the ability to lift and/or carry 20 pounds
occasionally, 10 pounds frequently, and sit 6 hours, stand 6
hours, and walk 6 hours in an 8-hour workday. Her ability to
push and/or pull [is] limited to the same weights as she can lift
and/or carry. However, she is only able to occasionally reach
overhead bilaterally as well as occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl. She can never
climb ladders, ropes, or scaffolds. The claimant can frequently
work at unprotected heights, around moving mechanical parts, or
in vibration. Finally, she is limited to only frequent extension,
rotation, and flexion of her neck.
(Tr. 15-16.)
The ALJ summarized some of the pertinent hearing testimony as
follows:
During the hearing, the claimant testified that until February
2017, she worked as a ticket seller but can no longer perform the
job due to its sitting requirements. . . .
In terms of her limitations, she indicated that she cannot even sit
for 30 minutes at one time before having to lay down due to neck
and back pain/pressure. She testified that she gets neck spasms
and cannot utilize her left arm and is restricted to lifting no more
than 7 to 10 pounds. Because of this, she testified that she has
overused her right arm with resulting shoulder pain. Moreover,
she indicated that she has arthritis in her hand/thumb, requiring
multiple injections. She also testified that she has low back pain,
limiting her, as noted above, to sitting for 30 minutes before
needing to lay down for 30 minutes to take pressure off her back.
She also indicated that she is limited to standing for 1 hour and
walking 20 minutes; and that because of the severity of her back
impairment, her physician wants to perform surgery.
Finally, the claimant alleged on-going pain in multiple joints.
For example, she indicated that because of right knee pain, she
has to wear a brace due to pain and instability. In fact, she
indicated that even if surgery corrects her back, she could not
stand for long periods because of knee pain.
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(Tr. 16.)
The ALJ found that Plaintiff’s impairments could reasonably be
expected to cause the alleged symptoms, but her statements concerning the
intensity, persistence, and limiting effects of those symptoms were “not
entirely consistent with the medical evidence and other evidence in the
record.” (Tr. 17.) The ALJ explained:
First, the objective findings on examination generally note
normal gait, station, and strength, which appears in direct
conflict with the claimant’s testimony that her impairments
severely restrict her ability to lift, carry, stand, walk, and sit.
Moreover, although imaging has revealed cervical and lumbar
spinal impairments, despite her allegations of neck/lower back
pain, her cervical spine MRI revealed no spinal or foraminal
narrowing and her lumbar MRI, although noting L5-S1
spondylolisthesis that may eventually require surgery, notes no
more than minimal degeneration at any other level.
Furthermore, despite her testimony regarding the severity of her
knee pain, which would prevent standing even after her back
impairment was correct, 2019 examinations have noted full range
of motion, intact sensation, and no weakness (see[,] e.g.[,] Ex.
C24F/3). Similarly, although the claimant alleges significant
hand/manipulative limitations, this is generally not noted on
examination (see[,] e.g.[,] Ex. C11F). . . .
(Id.)
The ALJ then turned to the medical evidence, but found that despite “a
long history of spinal and multi-joint impairment . . . , neither diagnostic
imaging nor objective findings on examination demonstrate that these
impairments are nearly as severe as currently alleged.” (Id.) With respect to

9

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Plaintiff’s treatment, the ALJ noted:
[W]hile the physical therapy did help, the claimant continued to
report pain. Her insurance would not cover injection treatment,
and her neurologist scheduled her for an L5-S1 laminectomy with
fusion and internal fixation and open reduction (Exs. C18F, 19F).
However, in September 2018, the claimant canceled this surgery,
reporting that she no longer experiences radiating leg pain and is
able to stand for 1 hour and walk 45 minutes at one time, noting
that her right knee was actually her primary impediment to
physical activity (Ex. C27F). Although, of note, July 2019 records
note that the claimant again wants surgery, reporting a
reduction in her ability to walk, stand, and sit (Ex. C31F).
Finally, in late 2018 into early 2019, orthopedic records list
significant right knee pain, diagnosed as degenerative disc
disease, with resulting injection. However, examinations note
full range of motion of the knee, although some examinations do
note knee weakness (Exs. C22F, 24F). During this period, due to
Hallux valgus, the claimant also underwent a modified McBride
bunionectomy . . . .
(Tr. 17-18.)
The ALJ then addressed the opinion evidence, giving great weight to
the July 2017 opinions of State agency non-examining consultant, Shakra
Junejo, M.D. (Tr. 18.) The ALJ explained:
[Dr. Junejo] supports his function-by-function restrictions with
specific evidence of record. Moreover, his conclusion is consistent
wit the bulk of the evidence of record, which, as noted above,
shows that while the claimant does experience several
impairments, none are debilitating. While surgery has been
offered for her back, the claimant has to this point, not undergone
the procedure, opting for more conservative treatment. Even
without this surgical intervention, examinations generally show
normal gait and station. Furthermore, while impairment is
noted in several joints on diagnostic imaging, the bulk of these
are deemed mild or minimal.
10

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(Id.) In summary, the ALJ stated “although the claimant has on-going
physical impairment, which may require lumbar surgery, the overall
evidence of record notes the ability to perform the severely reduced range of
light work defined above.” (Id.)
Then, at step four, based on the testimony of the Vocational Expert
(“VE”), the ALJ found that Plaintiff was capable of performing her past
relevant work as a ticket seller (DOT No. 211.467-030) and retail clerk (DOT
No. 290.477-014), as actually and generally performed. (Tr. 18-19.) The ALJ
also found, in the alternative at the fifth step of the sequential evaluation,
that there were other jobs existing in significant numbers in the national
economy that Plaintiff could perform, such as a counter attendant, an
advertisement material distributor, and a cafeteria attendant, all of which
are light exertional jobs with a Specific Vocational Preparation (“SVP”) level
of two. (Tr. 19-20.) Thus, the ALJ concluded that Plaintiff was not disabled
from February 8, 2017 through September 3, 2019. (Tr. 20.)
3.

The Appeals Council Evidence and Decision

On December 16, 2019, Plaintiff provided her medical records from
Tampa General Hospital, dated October 28, 2019 to November 8, 2019, and
from Dr. Freeman with USF Department of Neurosurgery, dated July 8, 2019

11

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to October 16, 2019, to the Appeals Council. 3 (Tr. 33, 442.)
On October 8, 2019, Plaintiff underwent lumbar X-rays, showing mild
scoliosis. (Tr. 449.) On October 8, 2019, Plaintiff underwent a lumbar MRI,
which demonstrated:
1. There is multilevel degenerative disc disease with a small
right paracentral disc protrusion at L4-L5 with mild central
spinal stenosis and mass effect on the right L5 nerve root
along the right lateral recess without interval change
compared to 12/10/2018.
2. There is 3 mm anterolisthesis of L5 on S1 related to bilateral
spondylolysis of L5 without interval change.
(Tr. 447-48.)
On July 8, 2019 (before the August 13, 2019 hearing and the ALJ’s
September 3, 2019 decision), Plaintiff underwent lumbar X-rays and also saw Dr.
Freeman. (Tr. 445, 450.) Her lumbar X-rays demonstrated:
1. There is interval increase in grade 2 anterolisthesis of L5 on S1 since
5/7/2018 related to bilateral spondylolysis of L5.
2. Multilevel degenerative changes in the lower lumbar spine.
3. Mild dextroscoliosis.
(Tr. 450.)
3

On July 8, 2019, Dr. Freeman noted:
Once again[,] we had a very long discussion. Her low back pain is now going
from 6 out of 10-10 out of 10 and her leg pain is resolved. She had a severe
flareup about 3 weeks ago and it lasted 3 days where she had trouble
straightening up. She can now only walk for 20 minutes as opposed to about
45 minutes when I saw her in December.
...
Having said that[,] she finally wants her back fixed[;] she understands that
at age 53 she is unlikely to avoid surgery with time. Of note[,] the flexionextension x-rays today that she has about 13 mm of listhesis and it was 11
mm about a year ago so there is some radiologic progression. This was
mentioned as part of the assessment that she will require surgery for her
axial back pain with now what is clearly progressing radiologically in terms
of her listhesis. She also wants surgery because of the worsening pain.
(Tr. 445.) Dr. Freeman’s July 8, 2019 note was available to the ALJ. (See Tr. 2005.)
12

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On October 16, 2019, Plaintiff saw Dr. Freeman, who stated as follows:
The patient canceled surgery on September 11, 2018 with [one]
week of notice. She is finally ready for surgery. Back pain goes
up to 10 out of 10 in severity and is in the midline at the L5-S1
level without any facet pain on physical exam. There is also pain
at the next level up, L4-5 which goes up to 5 out of 10 at worst in
severity and this is livable. The pain at the L5-S1 level is what is
not livable. . . . The L5-S1 regional pain is about 80% of her total
pain. This is what limits her to standing for 45 minutes or sitting
for 60 to 90 minutes or walking for 20 minutes. She does have
some left leg pain with sitting which may be referred from the
left sacroiliac joint but hopefully this will get better after surgery.
Of note[,] her scoliosis x-ray shows about 7.2 cm of positive
sagittal balance and she does have some stenosis at L5-S1 on the
new MRI scan performed with and without contrast on October 8,
2019 due to the listhesis at L5-S1 with bilateral pars defects as
well as epidural lipomatosis leading to moderate to marked canal
stenosis at L5-S1. Therefore[,] any SI joint pain may be due to
walking in a flexed manner and hopefully this will get better
when she is walking more upright. She is in so much pain that
she can no longer exercise.
From a social perspective, she underwent an evaluation for Social
Security disability and this was denied. She therefore now wants
surgery so that she can go back to work and make some money. .
..
In addition to the above mentioned findings at L5-S1 on the MRI
scan with listhesis, bilateral pars defects and bilateral foraminal
stenosis and canal stenosis with epidural lipomatosis as well, the
patient has a right L4-5 mild to moderate disc bulge with
foraminal stenosis. I suspect this is what is causing her right leg
weakness which is chronic which includes 4+/5 strength in the
right hamstring and 4+/5 strength in the right extensor hallucis
longus with normal sensation to pinprick and 2+ reflexes in the
knees and ankles. Although she is weak on the right side, she is
complaining of left leg pain worse with walking.
Flexion-extension x-rays demonstrate progressive listhesis which
has progressed over the last year and now goes from 11 to 14 mm
13

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at the L5-S1 level which is increased by 2 to 3 mm since a year
ago. . . .
Therefore[,] the planned operation is to do a decompressive L5-S1
laminectomy and right L4-5 decompressive hemi-laminectomy,
and right L5-S1 TLIF [transforaminal lumbar interbody fusion]
with interbody cage and interbody fusion (with local bone graft
and [basic metabolic panel]), and a L5-S1 fusion and internal
fixation and open reduction.
(Tr. 443-44; see also Tr. 100-01.)
The records from Tampa General Hospital reflect that on November 5,
2019, Plaintiff underwent L4-S1 decompressive laminectomies with medial
facetectomies and foraminotomies; right L5-S1 TLIF (with interbody cage
interbody fusion with local bone graft and basic metabolic panel); L5-S1
posterior lumbar fusion (with bone bank bone graft); and L5-S1 posterior
internal fixation with open reduction. (Tr. 63, 89-90.) On November 6, 2019,
Plaintiff complained of acute post-surgical lumbar pain, 6 out of 10 in
severity, which was aggravated by movement. (Tr. 105.) The same day,
Plaintiff underwent lumbar X-Rays, showing, inter alia, mild
dextroconvexity, Grade 1 anterolisthesis of L5 on S1, and mild spondylosis.
(Tr. 235.) Plaintiff was discharged in a fair condition. (Tr. 90.) Upon
discharge, she was advised to advance her activity as tolerated, walk as
tolerated, not lift more than ten pounds, and wear her brace when sitting up
or when out of bed. (Tr. 80.)
On July 19, 2020, the Appeals Council denied Plaintiff’s request for
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review of the ALJ’s September 3, 2019 decision. (Tr. 1.) With respect to the
additional evidence submitted by Plaintiff, the Appeals Council stated, in
relevant part:
You submitted [m]edical [r]ecords from Dr. Thomas Freeman
(USF Department of Neurosurgery), dated July 8, 2019 through
October 16, 2019[] (9 pages). We find this evidence does not show
a reasonable probability that it would change the outcome of the
decision. We did not exhibit this evidence.
You submitted [m]edical [r]ecords from Tampa General Hospital,
dated October 28, 2019 through November 8, 2019[] (362 pages).
The [ALJ] decided your case through September 3, 2019. This
additional evidence does not relate to the period at issue.
Therefore, it does not affect the decision about whether you were
disabled beginning on or before September 3, 2019.
If you want us to consider whether you were disabled after
September 3, 2019, you need to apply again.
(Tr. 2.)
C.

Analysis

A claimant is generally allowed to present new evidence at each stage
of the administrative process. Ingram v. Comm’r of Soc. Sec. Admin., 496
F.3d 1253, 1261 (11th Cir. 2007). “The Appeals Council must consider new,
material, and chronologically relevant evidence and must review the case if
‘the administrative law judge’s action, findings, or conclusion is contrary to
the weight of the evidence currently of record.’” Id. (internal citation
omitted). Evidence is chronologically relevant if it relates to the period on or
before the date of the ALJ’s decision. See id. Evidence is “material” when it
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is “relevant and probative so that there is a reasonable possibility that it
would change the administrative result.” Milano v. Bowen, 809 F.2d 763, 766
(11th Cir. 1987) (quotations omitted). “[W]hen a claimant properly presents
new evidence to the Appeals Council, a reviewing court must consider
whether that new evidence renders the denial of benefits erroneous.”
Ingram, 496 F.3d at 1262.
The Court finds that the new evidence submitted to the Appeals
Council is chronologically relevant because at least some of the newly
submitted medical records relate to the period on or before the date of the
ALJ’s September 3, 2019 decision. Although the Appeals Council found that
the records from Tampa General Hospital did “not relate to the period at
issue,” it did not, and could not, make the same finding as to Dr. Freeman’s
records. 4 (Tr. 2.)

While Dr. Freeman’s July 8, 2019 note was available to the ALJ (see Tr.
2005), the ALJ did not seem to consider it in her decision. Although the ALJ
referred to records from July of 2019 where Plaintiff “want[ed] surgery, reporting a
reduction in her ability to walk, stand, and sit” (Tr. 18), she cited to Exhibit C13F,
which does not include Dr. Freeman’s July 8, 2019 note. Additionally, the ALJ’s
discussion and interpretation of the evidence that was available at the time of her
decision, does not seem to indicate that the ALJ was aware of this particular note
from July 8, 2019. The ALJ’s discussion of the medical evidence suggests that
Plaintiff “may require lumbar surgery” (Tr. 18), or “may eventually require surgery”
(Tr. 17), but the new records from Dr. Freeman indicate that Plaintiff’s back
surgery was imminent due to her age, her worsening pain (now 10 out of 10), her
greater limitations in functioning (such as ability to walk for only 20 minutes as
opposed to 45 minutes previously), and the results of the July 8, 2019 lumbar Xrays, showing “radiologic progression” of her listhesis. (Tr. 445; see also Tr. 450
(showing, inter alia, “interval increase in grade 2 anterolisthesis of L5 on S1” and
4

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The Court further finds that this new and chronologically relevant
evidence is material because there is a reasonable possibility that it would
have materially affected the administrative decision. In support of her RFC
assessment, the ALJ stated that “neither diagnostic imaging nor objective
findings on examination demonstrate that [Plaintiff’s] impairments are
nearly as severe as currently alleged.” (Tr. 17.) When making that
assessment, the ALJ was not aware of the results of Plaintiff’s July 8, 2019
lumbar X-rays, or any of the subsequent imaging studies, including lumbar
X-rays and MRI from October 8, 2019. In determining the RFC, the ALJ also
relied on the outdated opinions of the State agency non-examining consultant
and noted that Plaintiff had opted for more conservative treatment, declining
surgery. (Tr. 18.) While that may have been true in 2017, Dr. Junejo did not
seem to base his opinions on the lack of surgery. In any event, Plaintiff’s
testimony on August 13, 2019 clearly put the ALJ on notice that her lumbar
surgery was upcoming despite the high risks it carried. (See Tr. 417-20, 42225, 427, 433-34.)
Defendant argues that to the extent the new records show worsening of

multilevel degenerative changes in the lower lumbar spine).) These X-rays, along
with the rest of the new evidence, were not available to the ALJ. In other words,
the progression or worsening of Plaintiff’s condition was reflected not only in the
new records that post-dated the ALJ’s decision, but also in the new records that
predated the ALJ’s decision and even the administrative hearing.
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Plaintiff’s condition after the ALJ’s decision, they are not chronologically
relevant. See Ring v. Soc. Sec. Admin., 728 F. App’x 966, 969 (11th Cir. 2018)
(per curiam) (affirming the ALJ’s decision after finding that the doctor’s
evaluation seemed to relate to the worsening of a condition or the onset of a
new condition after the date of the ALJ’s decision) (citing HALLEX, I-3-36(B)(2); Washington v. Comm’r of Soc. Sec., 806 F.3d 1317, 1320 (11th Cir.
2015)). However, as stated earlier, the worsening of Plaintiff’s condition was
reflected not only in the new records that post-dated the ALJ’s decision, but
also in the new records that predated the ALJ’s decision and even the
administrative hearing.
Also, the record that was before the ALJ, including Plaintiff’s testimony
at the hearing, indicated that Plaintiff was about to be scheduled for lumbar
fusion surgery. On this record, the Court cannot say that the worsening of
Plaintiff’s condition happened only after the ALJ’s decision. Instead, it was a
progressive deterioration of a medical condition that the ALJ reviewed, which
resulted in lumbar fusion surgery only two months after the ALJ’s decision,
of which the ALJ was put on notice during the hearing. While Defendant
acknowledges Dr. Freeman described the same medical conditions that the
ALJ already reviewed, Defendant claims that “Dr. Freeman’s opinion is
inconsistent with the other evidence of record.” (Doc. 25 at 7.) It appears
that Defendant is taking inconsistent positions.
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In sum, based on the foregoing, the Court concludes that the new
evidence submitted to the Appeals Council is chronologically relevant (at
least in part) and material. 5 Although the Court cannot speculate what
weight the ALJ may assign to the new evidence submitted to the Appeals
Council, there is a reasonable possibility that this evidence, alone or when
considered with the rest of the file, could change the outcome in this case.
Therefore, this case will be reversed and remanded for further proceedings.
Accordingly, it is ORDERED:
1.

The Commissioner’s decision is REVERSED and REMANDED

pursuant to sentence four of 42 U.S.C. § 405(g), with instructions to the ALJ
to conduct the five-step sequential evaluation process in light of all the
evidence, including the newly submitted evidence, and conduct any further
proceedings deemed appropriate.
2.

The Clerk of Court is directed to enter judgment accordingly,

terminate any pending motions, and close the file.
3.

The judgment should state that if Plaintiff were to ultimately

prevail in this case upon remand to the Social Security Administration, any §
406(b) or § 1383(d)(2) fee application must be filed within the parameters set

Given that the new evidence predates Plaintiff’s date last insured, it is
appropriate for the Commissioner to consider all of this evidence in rendering a new
decision on Plaintiff’s claims.
5

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forth by the Standing Order on Management of Social Security Cases entered
in In re: Administrative Orders of the Chief Judge, Case No.: 3:21-mc-1-TJC
(M.D. Fla. Dec. 7, 2021).
DONE AND ORDERED at Jacksonville, Florida, on May 6, 2022.

Copies to:
Counsel of Record

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