Barbara Pennington v. Commissioner Social Security

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: SHWARTZ, COWEN and FUENTES, Circuit Judges. Total Pages: 7. Motions by Appellant to submit additional documents and to expand the record are denied.

Case: 16-1141

Document: 003112568506

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Date Filed: 03/21/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1141
___________
BARBARA J. PENNINGTON,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2:14-cv-00834)
District Judge: Honorable Gustave Diamond
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 20, 2017
Before: SHWARTZ, COWEN and FUENTES, Circuit Judges
(Opinion filed: March 21, 2017)
___________
OPINION*
___________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Barbara Pennington appeals from the District Court’s order affirming the denial
of Disability Insurance Benefits under the Social Security Act by the Commissioner of
Social Security (“the Commissioner”). We will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly summarize
the essential facts. On February 8, 2006, Pennington filed an application for Disability
Insurance Benefits under the Social Security Act, alleging that she was disabled
beginning October 16, 1993, due to a back injury and allergies. Pennington’s application
was denied. Pennington requested a hearing before an administrative law judge (“ALJ”).
After a hearing at which Pennington proceeded pro se, the ALJ denied Pennington’s
application in a decision issued June 3, 2008, finding that Pennington was not disabled.
Pennington then obtained counsel, who requested that the Appeals Council review the
ALJ’s decision; counsel submitted exhibits to the Appeals Council which were not before
the ALJ. The Appeals Counsel denied review.
Pennington then filed a counseled complaint challenging the ALJ’s decision.
After the Commissioner filed an answer, the parties filed motions for summary judgment.
The District Court denied Pennington’s motion for summary judgment, granted the
Commissioner’s motion for summary judgment, and entered judgment in favor of the
Commissioner. Pennington appeals.1
II.
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Pennington has filed a motion to submit additional documents and a supplemental
motion to expand the record to include exhibits not presented to the ALJ, the Appeals
Council, or the District Court. The Commissioner opposes this motion.
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The District Court had subject matter jurisdiction pursuant to 42 U.S.C. § 405(g).
We have jurisdiction to review the District Court’s decision under 28 U.S.C. § 1291. Our
review is limited to determining whether substantial evidence supports the ALJ’s finding
that Pennington was not disabled. 42 U.S.C. §§ 405(g), 1383(c); Rutherford v. Barnhart,
399 F.3d 546, 552 (3d Cir. 2005). “‘Substantial evidence’ has been defined as ‘more
than a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Smith v. Califano, 637 F.2d 968, 970 (3d Cir.
1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). We exercise plenary
review over the District Court’s determination of legal issues, including whether it was
proper for the District Court to decline to remand the matter to the ALJ for consideration
of new evidence. See Matthews v. Apfel, 239 F.3d 589, 591 (3d Cir. 2001).
III.
The District Court properly held that it could not consider any evidence that was
not part of the record considered by the ALJ. See Matthews, 239 F.3d at 594 (citing
Jones v. Sullivan, 954 F.2d 125, 128 (3d Cir. 1991)). When a claimant seeks to rely on
evidence that was not before the ALJ, a district court has the option to remand the case to
the Commissioner for consideration of that evidence under the sixth sentence of § 405(g),
but only if the evidence is “new” and “material,” and only if the claimant shows good
cause why it was not presented to the ALJ. 239 F.3d at 592, 594. The burden was on
Pennington to make this showing. Id. at 595. “[S]ixth-sentence remand is appropriate
when the district court learns of evidence not in existence or available to the claimant at
the time of the administrative proceeding that might have changed the outcome of that
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proceeding.” Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). “The fact that a claimant
is unrepresented by counsel and has knowingly waived this right is not alone sufficient
for remand.” Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980).
Pennington submitted a statement from Dr. John Boor, dated August 4, 1995, and
insurance forms dated October 14, 1994 through August 10, 1995, to the Appeals
Council. The submissions presented, inter alia, Dr. Boor’s detailing of Pennington’s
medical condition and a checked box indicating that Pennington could not work and that
release to full time duty was indeterminate. The District Court determined that the
evidence presented from Dr. Boor was not new as Dr. Boor made his assessment 13 years
prior to the ALJ’s decision. The District Court also determined that the evidence was not
material as Dr. Boor provided no explanation for his assessment that Pennington could
not work. Finally, the District Court concluded that Pennington knowingly waived her
right to counsel and was able to submit numerous records to the ALJ and present her case
at the hearing. Thus, her pro se status did not constitute good cause. We agree.
Pennington raises the following claims for the first time on appeal: (1) the ALJ
violated her due process rights, (2) she was under undue influence when she proceeded
pro se at the hearing, and (3) the SSA and ALJ failed to accept records. These arguments
were not presented to the District Court and are therefore waived. See C.H. v. Cape
Henlopen Sch. Dist., 606 F.3d 59, 73 (3d Cir. 2010).
Additionally, Pennington’s claim that the ALJ improperly weighed opinion
evidence is also waived. Before the District Court Pennington argued only that the
Appeals Council erred in failing to find that the later submitted evidence from Dr. Boor
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was new and material evidence that Pennington was under disability. It is clear that
Pennington sought review only under sentence six of § 405(g), not under sentence four,
and the District Court disposed of the claim as such. See Melkonyan v. Sullivan, 501
U.S. 89, 98 (1991) (noting that the two types of remand provided for in § 405(g) are
distinct). Thus, Pennington’s argument that the District Court erred in finding the ALJ’s
decision was supported by substantial evidence is waived. Moreover, even if Pennington
had sought sentence four review, Pennington did not present to the District Court the
argument that the ALJ improperly weighed the opinion evidence, giving too much weight
to Dr. Tomacruz and too little weight to Dr. Boor, Dr. Der Krikorian, and Dr. Ahmed. It
is well-established that “it is inappropriate for an appellate court to consider a contention
raised on appeal that was not initially presented to the district court.” Wright v. Corning,
679 F.3d 101, 105 (3d Cir. 2012) (quoting Lloyd v. HOVENSA, 369 F.3d 263, 272-73
(3d Cir. 2004)).
However, even if the claim were not waived, it is meritless. While an ALJ must
generally give great weight to a claimant’s treating physician, an ALJ may discredit the
treating physician’s opinion if other evidence contradicts it. 20 C.F.R. § 416.927(c); see
also Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011); Morales v.
Apfel, 225 F.3d 310, 317 (3d Cir. 2000).
The ALJ considered the opinion of Dr. Der Krikorian in July 1994, that
Pennington should “stay away from work” and the opinion of Dr. Ahmed in November
2006, that Pennington was unable to stand or walk for more than one hour, or sit for more
than one half hour in an eight-hour period, but gave them little weight. Tr. at 26. The
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ALJ found that these opinions were inconsistent with the clinical and objective findings
on and prior to the date last insured. Id. at 27. Specifically, the ALJ cited the MRI
performed in May 1994, which revealed no evidence of disc herniation or significant
spinal stenosis; the physical therapy evaluation in May 1994, which showed a normal gait
and only mild decrease in lower extremity strength; and a physical examination by Dr.
Tomacruz in December 1999, in which Pennington exhibited a full range of motion in her
extremities. Id. at 23-24. Additionally, the ALJ noted that, despite his opinion that
Pennington should stay away from work for a period of time, Dr. Der Krikorian
concluded that Pennington’s condition did not require surgical intervention and
recommended only physical therapy. Id. at 24. Moreover, the ALJ noted that Dr.
Ahmed’s examination determined that Pennington had a full range of motion in the
lumbar spine, and that his opinion regarding her ability to walk and sit was largely based
on Pennington’s subjective complaints. Id. at 27. Contrary to Pennington’s assertion, the
ALJ did not accept Dr. Tomacruz’s opinion over the opinions of Dr. Der Krikorian and
Dr. Ahmed on the issue of Pennington’s residual functional capacity, as Dr. Tomacruz
did not opine on that issue. Finally, as discussed supra, Pennington did not submit Dr.
Boor’s assessments to the ALJ. Accordingly, the ALJ considered and afforded proper
weight to the opinion evidence before him, and the ALJ’s finding is supported by
substantial evidence.

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IV.
In conclusion, we will affirm the judgment of the District Court. Pennington’s
motions to submit additional documents and to expand the record are denied.

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