NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 16-1843
MICHAEL EDWARD DAVERN,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-15-cv-00162)
District Judge: Honorable Christopher C. Conner
Submitted Under Third Circuit L.A.R. 34.1(a)
November 1, 2016
Before: HARDIMAN and SCIRICA, Circuit Judges,
and ROSENTHAL,* District Judge.
(Filed: November 7, 2016)
OPINION**
*
The Honorable Lee H. Rosenthal, United States District Judge for the Southern
District of Texas, sitting by designation.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
ROSENTHAL, District Judge.
Michael Davern appeals the District Court’s order affirming the Commissioner of
Social Security’s decision that he was not disabled under the Social Security Act, 42
U.S.C. §§ 401–433. We conclude that substantial evidence supported the
Commissioner’s decision, and we will affirm.
I.
Davern, who was 48 when the Commissioner denied disability in 2010, worked as
a truck driver from 1988 to May 2004. In 2003, he injured his back carrying heavy items
at work. He decreased his hours until he stopped working in 2005. In 2007, he settled a
workers’ compensation claim with his former employer for his 2003 injury. In 2004, Dr.
Warren DeWitt, a family physician, and Dr. Laurence Schenk, an orthopedic surgeon,
treated Davern’s back pain with nerve-block injections, muscle relaxers, and pain
medication. Both doctors concluded that at that time, he could lift up to 30 pounds, sit
for up to 1 hour, stand for up to 10 minutes, and perform light duty for his employer.
In 2006, Dr. Schenk performed back surgery on Davern. Although Davern
reported some numbness and restricted range at follow-up appointments, by June 2006,
Dr. Schenk observed that he “showed excellent motion, surprisingly better than I had
expected,” and that he had “no hard neurologic defects.” App. 290.
Although Davern could not return to a truck-driver job because it would routinely
require heavy lifting, Dr. Schenk encouraged him to get vocational training and
rehabilitation. Through 2007, Dr. Schenk continued to assess Davern as doing “quite
well” radiographically but only “fair” clinically, even with pain management. App. 278–
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79, 286. On July 27, 2007, Dr. Schenk found that Davern could stand for 15 minutes, sit
for 4 hours, lift 20 pounds, and work a 40-hour week.
On June 25, 2008, Davern completed a Function Report form. He described his
activities as including routine housework, driving, grocery shopping, and mowing his
lawn. He could lift up to 20 pounds, stand or walk for 20 minutes, and walk up to a
quarter of a mile. On July 3, 2008, Dr. Paul Buckthal, a neurologist, observed that
Davern had a full range of neck, arm, elbow, and wrist motion, but restricted forward
bending. In September 2008, Dr. Leo Potera, a physician from a Pennsylvania state
agency, found that Davern could lift up to 20 pounds and could stand, walk, or sit for 6
hours out of an 8-hour workday.
In March 2009, Davern reported sudden intense back spasms. Dr. Schenk ordered
an MRI, which revealed a minor disc bulge. Dr. Schenk prescribed medication. By July
2009, Dr. Schenk described Davern’s back as “stable.” App. 346.
Davern’s insurance coverage ended December 31, 2009. On June 17, 2010, Dr.
DeWitt completed a Residual Functional Capacity questionnaire. Dr. DeWitt wrote that
Davern had lumbosacral degenerative disc disease and could not walk, sit, or stand any
amount of time without interruption. By 2011, a screw from the 2006 surgery had broken
in Davern’s back. Dr. DeWitt issued another report in 2013, finding Davern disabled.
In July 2010, an ALJ held a hearing. Davern was present with counsel. The ALJ
recognized that during the insured period, Davern was severely impaired as a result of
degenerative disc disease of the lumbar spine. The ALJ nonetheless substantially
discounted Dr. DeWitt’s reports and credited Dr. Schenk’s. Dr. DeWitt found Davern
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disabled; Dr. Schenk found that Davern could do a limited range of light work during the
period he was insured. Davern appealed the disability denial.
In September 2012, the District Court remanded the case to the ALJ because the
record did not include a vocational expert’s testimony. In May 2013, the ALJ held
another hearing at which a vocational expert testified. Davern again appeared with
counsel. Based on the expert’s testimony, the ALJ found that there were appropriate jobs
in significant numbers in the national economy that Davern could have performed. The
ALJ again concluded that Davern was not disabled under the Social Security Act, 42
U.S.C. §§ 401–433.
Davern exhausted his administrative remedies and again sought the District
Court’s review of the Commissioner’s decision under 42 U.S.C. § 405(g). The
Magistrate Judge recommended affirming the ALJ’s benefits denial. The District Court
overruled Davern’s objections to the Magistrate Judge’s report, adopted the
recommendation, and dismissed with prejudice. Davern timely appealed.
II.
The District Court had jurisdiction to review the Commissioner’s final
administrative decision under 42 U.S.C. § 405(g). We have jurisdiction under 28 U.S.C.
§ 1291.
We review disability decisions using the same standard as the District Court.
Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 118 (3d Cir. 2000). The Social Security
Act, 42 U.S.C. § 405(g), states that “[t]he findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive.”
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Substantial evidence is “more than a mere scintilla.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quotation marks omitted). “[S]uch relevant evidence as a reasonable
mind might accept as adequate to support a conclusion” is sufficient. Id. (quotation
marks omitted). “Where the ALJ’s findings of fact are supported by substantial evidence,
we are bound by those findings, even if we would have decided the factual inquiry
differently.” Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (citation omitted).
III.
“[T]o establish a disability under the Social Security Act, a claimant must
demonstrate there is some medically determinable basis for an impairment that prevents
him from engaging in any substantial gainful activity for a statutory twelve-month
period.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (quotation marks omitted).
The claimant must show the existence of a disability based on “such medical and other
evidence of the existence thereof as the Commissioner of Social Security may require.”
42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1512(a).
The Social Security Commission uses a five-step sequence to determine if a
claimant is disabled. 20 C.F.R. § 416.920(a)(4). The ALJ considers whether the
claimant: (1) is engaged in substantial, gainful work activity; (2) has severe medical
impairments; (3) has an impairment that meets or equals one of the Social Security
Administration’s listed impairments; (4) can return to past relevant work; and, if not, (5)
can perform other work consistent with his residual functional capacity. Id. Under the
fifth step, the burden shifts to the Commissioner to show that jobs exist in substantial
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numbers in the national economy that the claimant can perform. Plummer, 186 F.3d at
428.
Davern argues that the ALJ erred by: (1) rejecting or attributing little weight to
certain conclusions of Dr. DeWitt; (2) failing to consider Davern’s neck impairments in
questioning the vocational expert; and (3) failing to consider evidence showing that
Davern’s impairments significantly worsened before his eligibility period ended in
December 2009 and failing to consider evidence of neurological impairment. These
arguments do not warrant the relief he seeks.
A.
Davern claims that the ALJ erred when she found no severe medical impairment
by giving controlling weight to the opinions of Dr. Schenk, Davern’s orthopedic surgeon,
and rejecting the conclusions of Dr. DeWitt, Davern’s family physician. Although an
ALJ need not cite every piece of relevant evidence in the record, see Fargnoli, 247 F.3d
at 42, she must adequately explain her reasons for rejecting a treating physician’s
opinion, see Sykes v. Apfel, 228 F.3d 259, 266 n.9 (3d Cir. 2000). At the same time, a
treating physician’s opinion is not always or automatically entitled to controlling weight.
Brown v. Astrue, 649 F.3d 193, 196 n.2 (3d Cir. 2011). The weight due a medical
opinion depends on a variety of factors, including the degree to which relevant evidence
supports the opinion and whether it is consistent with the record as a whole. 20 C.F.R. §
404.1527(c)(3)–(4); see also Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir.
2011) (“The ALJ—not treating or examining physicians or State agency consultants—
must make the ultimate disability and [Residual Functional Capacity] determinations.”).
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Davern argues that the ALJ did not properly evaluate the opinion evidence from
Dr. DeWitt, Davern’s long-term treating physician, and failed to consider Dr. Schenk’s
2009 reports documenting deterioration in Davern’s back condition. The record reveals,
however, that the ALJ adequately considered Dr. DeWitt’s opinions, noted where she
disagreed, and explained why. The ALJ reasoned that Dr. Schenk, as the treating
orthopedic surgeon, was the specialist on Davern’s lumbar spine problems, and she
applied the general rule that “more weight is given to the opinion of a specialist about
medical issues related to his or her area of specialty.” 20 C.F.R. § 404.1527(c)(5). The
ALJ concluded that Dr. Schenk’s opinions were consistent with, and substantiated by, the
record medical evidence and Davern’s own reports. Dr. Schenk’s opinions emphasized
objective measures of physical limits; Dr. DeWitt’s assessments substantially relied on
Davern’s subjective self-reported symptoms and pain. Although the ALJ did not
specifically cite Dr. Schenk’s treatment notes from March and July 2009, she concluded
that Dr. Schenk’s reports consistently showed that Davern was not so impaired that he
could not seek employment. Dr. Schenk noted in July 2009 that Davern’s “overall
condition is unchanged” with“no gross neurological deficits” and a “stable back.” These
observations are consistent with the ALJ’s findings. App. 346.
We conclude that the ALJ was entitled to give greater weight to Dr. Schenk’s
opinions than to Dr. DeWitt’s and that the record contained substantial evidence
supporting the ALJ’s findings, including consistent medical assessments and Davern’s
own reports of his activities. We affirm the ALJ’s finding that Davern could perform
light work throughout the insured period.
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B.
Davern’s second argument is that the ALJ failed to include his neck limitations in
the hypothetical questions she asked the vocational expert. The ALJ asked the vocational
expert to consider an individual between the ages of 42 and 48 (Davern’s age during the
eligibility period) with a GED and past work as a tractor-trailer truck driver who could
lift 20 pounds occasionally, stand 15 minutes at a time, sit 4 hours at a time, and work a
40-hour week. The vocational expert identified parking-lot attendant, ticket vendor, and
survey worker as jobs this individual could perform. Davern argues that the vocational
expert’s testimony cannot be considered substantial evidence because the hypothetical
question did not include medically undisputed evidence of his neck impairments. See
Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002).
Davern raises this argument for the first time on this appeal. In the District Court,
Davern asserted that the ALJ did not account for his neck limitations, but he did not
specifically challenge the vocational expert’s testimony. Davern appears to have waived
this issue. See Harris v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994) (“This
court has consistently held that it will not consider issues that are raised for the first time
on appeal.”); see also, e.g., Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 637 (3d. Cir.
2010) (applying waiver of argument rule to a district court’s decision affirming the
Commissioner’s benefits denial).
Even if Davern did not waive the argument, the vocational expert’s testimony was
substantial evidence that the ALJ properly could consider. Davern relies on Burns, in
which an ALJ posed a hypothetical question to a vocational expert before sending the
8
claimant to be examined for intellectual impairments. 312 F.3d at 120–21. Rather than
convene a new hearing with the vocational expert taking account of the intellectual-
impairment report, the ALJ relied on the vocational expert’s earlier testimony to conclude
that the claimant was not disabled. Id. The appellate court remanded to the ALJ “so that
a complete hypothetical could have been posed to the vocational expert.” Id. at 123–24.
But here, unlike Burns, the ALJ had and used the record when questioning the vocational
expert. The ALJ’s questions accounted for Davern’s neck limitations in light of the
medical records documenting his cervical range of motion and finding that his upper-
extremity strength and sensation were intact. We see no basis for relief on this ground.
C.
Finally, we address Davern’s argument that substantial evidence did not support
the ALJ’s decision. Davern repeats his argument that the evidence showed his condition
worsening in late 2009, before the eligibility period ended. He argues that the ALJ
improperly relied on reports that were too remote from his last-insured date in evaluating
the severity of his impairment. Davern argues that because these reports cannot be
substantial evidence, the ALJ’s decision lacked the required support. Davern disputes the
ALJ’s finding that he did not suffer from severe neurological impairments, dizziness, or
sleepiness. He challenges the ALJ’s reliance on two reports: a February 2006 risk
assessment in which Davern reported that he could still do moderately heavy labor; and a
June 2008 function report in which Davern reported that he could drive, shop for
groceries, mow the lawn, and regularly do routine household chores. Davern argues that
9
the ALJ also improperly relied on a 2008 report of his telephone interview with an
agency field officer to assess his mental alertness.
A federal court’s substantial-evidence review is “quite limited.” Rutherford v.
Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). A court may not weigh the evidence or
substitute its own findings for the Commissioner’s. Monsour Med. Ctr. v. Heckler, 806
F.2d 1185, 1190–91 (3d Cir. 1986). Davern’s arguments amount to a request to reweigh
the evidence and review the Commissioner’s findings and decision de novo. But the
findings were consistent with this Court’s recognition that “[a]lthough any statements of
the individual concerning his or her symptoms must be carefully considered, the ALJ is
not required to credit them.” Chandler, 667 F.3d at 363 (internal quotation marks and
citation omitted). Both the 2006 and 2008 reports were issued well after Davern claimed
to be disabled in 2004. Both reports included Davern’s own statements that he could
continue to do light to moderate work. The ALJ properly took a broad view of the record
to determine the credibility of Davern’s own descriptions of his ailments to his treating
physician and surgeon. Davern is correct that Dr. Schenk’s 2009 treatment notes, as well
as other physicians’ notes in 2008, documented Davern’s reports of numbness. However,
the ALJ properly considered all evidence of reported numbness under the degenerative
disc disease diagnosis, and was free to credit Dr. Schenk’s July 2009 report which stated
Davern had “no gross neurological deficits” in determining that any numbness did not
substantially limit Davern. App. 393, 346.
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Substantial evidence supports the ALJ’s findings and she applied the proper legal
standards in concluding that Davern was not disabled. There is no basis for reversal or
remand.
IV.
We will affirm.
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