           Case: 17-15733   Date Filed: 07/10/2018   Page: 1 of 14


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-15733
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 2:16-cv-00317-MRM



MICHAEL LINDSEY,

                                                            Plaintiff-Appellant,

                                  versus


COMMISSIONER OF SOCIAL SECURITY,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (July 10, 2018)

Before FAY, HULL, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Michael Lindsey appeals the district court’s order affirming the

Commissioner of the Social Security’s (“the Commissioner”) denial of his

application for Supplemental Security Insurance (“SSI”), pursuant to 42 U.S.C. §

405(g), and denying his request for a remand to consider new evidence.1 We

affirm.

                                      I. BACKGROUND

       Lindsey applied for SSI on April 5, 2013, alleging that he had become

disabled on August 1, 1988, due to bipolar disorder, mood disorder, and leg

deformities. 2 He later amended the alleged onset date to April 5, 2013, “to match

the SSI application date.” The Social Security Administration (“SSA”) denied his

claims initially and upon reconsideration. At Lindsey’s request, a hearing was held

before an Administrative Law Judge (“ALJ”).

       On December 22, 2015, after considering the medical evidence and

testimony from Lindsey, one of his case managers, and a vocational expert, the

ALJ denied Lindsey’s SSI application. The ALJ determined that Lindsey had not

engaged in substantial gainful activity since April 5, 2013, and that he had severe

1
  Both parties consented to final disposition by a magistrate judge pursuant to 28 U.S.C.
§ 636(c). For ease of reference, and because the decision was issued at the district court level,
this opinion refers to the decision as being by the “district court,” rather than by the magistrate
judge specifically.
2
  Lindsey also applied for disability insurance benefits (“DIB”) on April 5, 2013; however, he
did not challenge the denial of DIB before the Administrative Law Judge, Appeals Council, or
district court. He also does not raise on appeal any issues related to his application for DIB.

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impairments, including hypertension, degenerative disc disease of the lumbar

spine, mood disorder, anxiety disorder, impulse control disorder, and cannabis use

disorder. The ALJ determined that Lindsey did not have an impairment or

combination of impairments that met or medically equaled the severity of those

listed in 20 C.F.R. Part 404, subpart P, Appendix 1.

      With regard to Lindsey’s mental impairments, the ALJ stated that Lindsey

did not meet the Paragraph B criteria because: (1) he had only mild restrictions in

his daily living activities, as he was able to prepare his own meals, attend church

frequently, and leave the group home where he lived unattended; (2) he had only

moderate difficulties in social functioning, as he periodically had difficulties with

others in his group home, was characterized as “informative, pleasant, and

cooperative,” and had a history of legal struggles and incarceration stemming from

a violent attack on his ex-wife; (3) he had only moderate difficulties with

concentration, persistence, or pace, as treatment notes indicated that he had “good

attention and concentration, with no memory problems”; and (4) he had not

experienced any episodes of decompensation of extended duration.

      After considering the functional effects of Lindsey’s impairments, the ALJ

determined that he had the residual functional capacity (“RFC”) to perform a range

of light work with only occasional climbing of ladders, ropes, and scaffolds, and

no workplace hazards such as unprotected heights or dangerous, moving


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machinery. The ALJ also included that Lindsey is limited to understanding,

remembering, and carrying out simple, routine, and repetitive tasks. Additionally,

the ALJ determined that Lindsey cannot perform work requiring a high-quota

production-rate pace, that he can make judgments on simple work, that he should

have a routine work setting that is repetitive from day to day, that he occasionally

can have interactions with the public and co-workers, and that he should not work

in a team or in tandem.

      With regard to Lindsey’s mental impairments, the ALJ stated that Lindsey

had been involuntarily committed to inpatient hospitalization for significant

anxiety and suicidal ideation shortly before the alleged onset date. The ALJ noted

that treatment notes from his group home indicated that Lindsey reported receiving

a bill that had triggered an anxiety attack. The ALJ stated that, after the alleged

onset date, medical evidence indicated that Lindsey’s symptoms “relented,” he was

compliant with his medication, clinically stable, and did not require intensive or

inpatient treatment. Nonetheless, the ALJ stated that Lindsey’s mental limitations

were “plain,” and that she had accommodated for those limitations in the RFC.

      The ALJ stated that she gave great weight to Dr. Yamir Laboy’s opinion that

Lindsey did not face “more than moderate” mental and social limitations. She also

stated that she gave little weight to the opinions of Lindsey’s case managers that he

was not capable of maintaining employment due to his mental impairments, as they


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were not acceptable medical sources and their statements were “extreme and at

odds with the preponderance of evidence in this case.” The ALJ stated that she

gave little weight to Nurse Ann Hart’s opinions, as Hart was not an acceptable

medical source and her assessments were “extreme” and “unjustified by the

preponderance of evidence in this case.” The ALJ also stated that she considered

Lindsey’s numerous Global Assessment of Functioning scores as opinion evidence

and afforded them partial weight.

         The ALJ determined that, based on the vocational expert’s testimony,

Lindsey was capable of working as a tag inserter, garment sorter, and labeler; thus,

he was not disabled. On April 6, 2016, the Appeals Council denied Lindsey’s

request for review.

         Lindsey filed a complaint in the district court, challenging the

Commissioner’s denial of SSI. In June 2017, while his case was pending before

the district court, Lindsey moved for a sentence-six remand—allowing the district

court to retain jurisdiction and enter judgment after the remand proceedings are

completed 3—based on new, material, and chronologically relevant evidence that

became known to him only after a subsequent favorable decision that found him




3
    42 U.S.C. § 405(g).
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disabled as of April 1, 2016, the first date of the month in which his second SSI

application was filed.4

       Lindsey stated that, “[u]pon learning of [his] subsequent favorable decision,”

he twice requested the evidence underlying the SSA’s subsequent favorable

decision from the state agency’s field office; however, the state agency was

unresponsive to his requests and he was only able to obtain the evidence after

asking the SSA Regional Counsel’s office for help. He asserted that the evidence

was: (1) new because it was not part of the administrative record below; and (2)

material because “there existed a reasonable possibility that [he] would have been

found disabled” if the ALJ considered the newly discovered opinion of Dr. John

Pappas from January 13, 2016. He specifically argued that Dr. Pappas’s opinion

was chronologically relevant because it stated that his mental disorders and

symptoms dated back 10 to 12 years and that he had good cause for failing to

submit the new evidence at the administrative level because “this evidence did not

exist previously.” He attached evidence dating from November 4, 2015, through

January 31, 2017.

       The district court denied Lindsey’s motion to remand. The court determined

that Lindsey did not show good cause for failing to submit the records for

4
  Lindsey noted that he had filed his second SSI application after the Appeals Council denied
review on his first application because SSA rules prohibited a subsequent application before
then.

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November 4, 2015, through February 18, 2016, all of which pre-dated the Appeals

Council’s decision. The court reasoned that Lindsey had argued only that the

records had not been sent to counsel, but that Lindsey himself was clearly aware of

the additional records based on having visited the treatment sources during the

relevant times, and that the failure to obtain and submit the records was “an

oversight on Plaintiff’s counsel’s part.”

      In contrast, the district court determined that Lindsey had shown good cause

for failing to submit the April 21, 2016, through January 2017 records, as those

records did not exist before the Appeals Council denied review. Nonetheless, the

district court determined that those records were not chronologically relevant

because they were relevant only to whether Lindsey’s condition deteriorated after

the ALJ’s decision and not probative of Lindsey’s condition up to the date of the

ALJ’s decision in December 2015s. Thus, the district court determined that

Lindsey had failed to establish that those documents were “material, relevant, and

probative such that they would change the administrative result in this case.”

                                 II. DISCUSSION

      On appeal, Lindsey argues that the district court erred in failing to order a

sentence-six remand for the Commissioner to consider the newly-submitted

evidence. We review de novo a district court’s determination of whether a remand

to consider new evidence is necessary. Vega v. Comm’r of Soc. Sec., 265 F.3d


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1214, 1218 (11th Cir. 2001). A legal claim or argument that has not been briefed

before us is abandoned. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330

(11th Cir. 2004).

      A court may remand a case to the SSA for consideration of newly

discovered evidence pursuant to sentence six of 42 U.S.C. § 405(g). Hunter v. Soc.

Sec. Admin., 808 F.3d 818, 821 (11th Cir. 2015). To obtain a remand under

sentence six

      the claimant must establish 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.

Id. (quotation omitted). On the other hand, a claimant may seek a remand based on

evidence that was properly before the Commissioner under sentence four of 42

U.S.C. § 405(g), if he shows that the decision to deny benefits was not supported

by substantial evidence in the record as a whole based on the evidence that the

Appeals Council did not adequately consider. Ingram v. Comm’r of Soc. Sec.

Admin., 496 F.3d 1253, 1266-68 (11th Cir. 2007).

      A subsequent favorable decision is not newly discovered evidence. Hunter,

808 F.3d at 821 (“A decision is not evidence any more than evidence is a

decision.”). Nonetheless, the evidence supporting a subsequent favorable decision

may constitute new and material evidence under § 405(g). Id. at 821-22.


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      The good cause requirement is satisfied when the evidence did not exist at

the time of the administrative proceedings. Vega, 265 F.3d at 1218-19. In some

cases, appellant may show good cause “even if the evidence was available to the

applicant before the ALJ’s decision.” Falge v. Apfel, 150 F.3d 1320, 1323-24

(11th Cir. 1998). When the claimant gives no reason why he could not have

obtained the evidence earlier, the good cause requirement is not satisfied. Id. at

1323 & n.8. An ALJ “has a basic obligation to develop a full and fair record.”

Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). However, when the

evidence in the record is sufficient to support the ALJ’s determination, the ALJ

does not have a duty to obtain additional medical evidence. Wilson v. Apfel, 179

F.3d 1276, 1278 (11th Cir. 1999) (recognizing that the ALJ is not “obligated to

seek independent, additional expert medical testimony” when the record is

sufficient to support the ALJ’s decision); cf. Ellison v. Barnhart, 355 F.3d 1272,

1276 (11th Cir. 2003) (“[T]he claimant bears the burden of . . . producing evidence

in support of his claim.”).

      To be material, evidence must be both relevant and probative. See Keeton v.

Dep’t of Health & Hum. Servs., 21 F.3d 1064, 1068 (11th Cir. 1994) (noting that

the standard for remand requires, inter alia, that “the evidence is material, that is,

relevant and probative”). For the evidence to be material there must be a

reasonable possibility that it would change the administrative result. Falge, 150


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F.3d at 1323. The evidence also must be chronologically relevant, meaning it must

relate to the period on or before the date of the ALJ’s decision. 20 C.F.R.

§§ 404.970(b), 416.1470(b); see also Washington v. Soc. Sec. Admin., 806 F.3d

1317, 1320 (11th Cir. 2015) (“[T]he Appeals Council must consider new, material,

and chronologically relevant evidence that the claimant submits.” (quotation

omitted)).

      In Washington, we determined that the claimant’s newly-submitted

evidence—a physician’s opinion that was based on an examination that was

conducted several months after the ALJ’s decision—was both chronologically

relevant and material. 806 F.3d at 1319, 1321-23. The physician’s opinion was

material because: (1) it could establish that the claimant had an impairment that

met or equaled one of the listings; (2) the ALJ could credit the opinion over an

inconsistent physician’s opinion, as both opinions were based on independent

examinations; and (3) the treatment notes were consistent with, and supported, the

physician’s opinion. Id. at 1321-22. Additionally, the physician’s opinion related

back to the period before the ALJ’s decision, even though it was based on an

examination conducted after the decision, because the physician also had based his

opinions, in part, on the claimant’s reports about symptoms throughout his life and

medical records pre-dating the decision. Id. at 1319, 1322. We therefore held that




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the Appeals Council committed legal error in refusing to consider the newly-

submitted evidence. Id. at 1323.

      In Wilson, we determined that a claimant’s new evidence, a March 1996

physician’s opinion that she met one of the Listings in 20 C.F.R. Part 404, subpart

P, Appendix 1, which she had appended to her brief on appeal, was irrelevant and

not probative of any issue. 179 F.3d at 1278-79. We stated that, while the

physician’s opinion was relevant to whether the claimant’s condition subsequently

deteriorated, it was not relevant to the ALJ’s March 1995 disability determination.

Id. at 1279. We also stated that the ALJ did not violate his duty to fully and fairly

develop the record by seeking an additional expert opinion, as the record already

included several physicians’ opinions sufficient to support a decision. Id. at 1278.

      In Hargress v. Social Security Administration, we held that new evidence—

consisting primarily of treatment notes for a period after an ALJ’s decision—was

not chronologically relevant. 883 F.3d 1302, 1309-10 (11th Cir. 2018). We

distinguished Washington, noting that, although the claimant’s new evidence

included an opinion that her limitations pre-dated the ALJ’s opinion, nothing

indicated that the physician had (1) evaluated the claimant’s past medical records

in forming her opinion, or (2) treated the claimant during the relevant period. Id. at

1310. We also determined that the opinion was not material evidence, as it was

inconsistent with the physician’s treatment notes and the other medical records. Id.


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      As an initial matter, Lindsey’s records from November 4, 2015, were before

the ALJ when she made her decision, and, thus, are subject only to a sentence-four

remand. Ingram, 496 F.3d at 1266-68. As Lindsey has not raised any argument

for a sentence-four remand, any such claim is abandoned. Access Now, Inc., 385

F.3d at 1330.

      Lindsey’s argument that the December 2015 through February 2016 records

were nonexistent to him because he did not know of them before the Appeals

Council denied his request for review is unavailing because: (1) he has not shown

that those records did not actually exist before the Appeals Council’s decision; and

(2) as the district court stated, Lindsey knew that those records existed because he

had visited the treating sources on those dates. Vega, 265 F.3d at 1218-19.

Lindsey also has not demonstrated good cause by showing that he could not have

obtained the records earlier. Falge, 150 F.3d at 1323 & n.8. Despite Lindsey’s

counsel’s allegations that he had attempted to request the records earlier but the

SSA did not comply with his requests, he has submitted no documents showing

that he had attempted to obtain the records from the Commissioner or Lindsey’s

group home before the Appeals Council’s decision.

      Moreover, as the ALJ already had sufficient medical records before her to

reach a conclusion on Lindsey’s ability to work, the ALJ’s duty to develop a full

and fair record did not compel her to seek additional medical records or opinions.


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Wilson, 179 F.3d at 1278; Graham, 129 F.3d at 1422; cf. Ellison, 355 F.3d at 1276.

Thus, Lindsey has not carried his burden to show that he had good cause for failing

to submit the December 2015 through February 2016 records before the Appeals

Council denied his request for review on April 6, 2016. Hunter, 808 F.3d at 821.

      Furthermore, even if Lindsey had shown good cause, he has not shown that

the December 2015 through February 2016 records are material. Id. First, the

treatment notes from then do not show a reasonable possibility that the ALJ’s

decision would change because they indicate that Lindsey was clinically stable and

medication-compliant during that period. Falge, 150 F.3d at 1323; Keeton, 21

F.3d at 1068. Second, Dr. Pappas’s January 2016 opinion also does not show a

reasonable possibility that the ALJ’s decision would change because he indicated

that Lindsey retained the ability to perform simple manual labor and was able to

manage his psychotic symptoms through medication. Keeton, 21 F.3d at 1068.

Further, it is not clear that Dr. Pappas’s opinion is chronologically relevant because

he never indicated that he reviewed or relied on Lindsey’s prior medical records in

forming his opinion, other than stating Lindsey’s conditions had lasted 10 to 12

years. Hargress, 883 F.3d at 1310; Washington, 806 F.3d at 1319, 1322.

      The district court also did not err in determining that Lindsey’s newly-

discovered records from April 2016 through January 2017 were not material.

Hunter, 808 F.3d at 821; Keeton, 21 F.3d at 1068. First, none of the records from


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April 2016 to January 2017 are chronologically relevant, as they relate only to

Lindsey’s treatment after the ALJ’s decision and do not change the picture of what

his symptomology was like before the ALJ’s decision. Hargress, 883 F.3d 1309-

10; Washington, 806 F.3d at 1320; 20 C.F.R. §§ 404.970(b), 416.1470(b). The

records merely show that Lindsey suffered several episodes of decompression

requiring extended periods of hospitalization after the ALJ’s decision. Wilson, 179

F.3d at 1279. Second, Dr. Rodolfo Reni’s opinion in the “supplemental mental

impairment questionnaire” is not chronologically relevant, as nothing in the record

indicates that: (1) Dr. Reni relied on Lindsey’s prior medical records; or (2) Dr.

Reni treated Lindsey during the relevant period. Hargress, 883 F.3d at 1309-10.

      AFFIRMED.




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