                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 16-1245
                                      _____________

                                   KEITH BRUNSON,
                                            Appellant

                                             v.

                      COMMISSIONER OF SOCIAL SECURITY
                               ______________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (D.C. No. 2-15-cv-00034)
                      District Judge: Honorable Gerald A. McHugh
                                     ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 September 15, 2016
                                  ______________

           Before: CHAGARES, GREENAWAY, JR., RESTREPO, Circuit Judges.

                                   (Filed: July 31, 2017)
                                     ______________

                                        OPINION*
                                     ______________

RESTREPO, Circuit Judge.

       Keith Brunson appeals from an order of the District Court adopting a Magistrate

Judge’s recommendation to affirm the Commissioner of Social Security’s denial of his

       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
application for disability insurance benefits under Title II of the Social Security Act. We

will affirm.

                                             I.

       As we write for the benefit of the parties, we set out only the facts necessary for

the discussion that follows. In March 2006, Brunson injured his left shoulder while

working as a trash collector. He initially received physical therapy, but discontinued it in

August 2006. Brunson received no further formal treatment for almost two years. After

working on modified duty post-injury, Brunson ultimately stopped working and sought

treatment with Dr. Brian J. Sennett. Although Dr. Sennett recommended surgery,

Brunson declined this option. Several years later Brunson injured his right shoulder. As

before, he waited—this time for about six months—before he sought treatment.

       In March 2012, Brunson applied for disability benefits. Shortly thereafter, Dr.

Harris Ross, the Social Security Administration’s evaluating physician, examined

Brunson and completed a Medical Source Statement (“MSS”) regarding his abilities. Dr.

Ross concluded that Brunson was extremely limited in his ability to lift, stand, walk, and

carry. However, Dr. Ross left blank the areas of the form for “supportive medical

findings,” only noting the date of the report. R. 234–35.1 In Dr. Ross’s full summary, he

stated that although Brunson complained of pain and had limited range of motion in both

shoulders, his reflexes were intact and his grip was normal.



       1
          The appellate record includes both an appendix prepared for this Court and a
reproduced record from the District Court. Following the convention of the parties, we
cite to items in the initial appendix as “J.A.” and to those in the reproduced record as “R.”
                                             2
       Later, state agency medical consultant Dr. Sharon A. Wander reviewed Brunson’s

medical records and arrived at a different conclusion. In Dr. Wander’s detailed report,

she concluded that Brunson was able to engage in light work, with fewer restrictions on

lifting and sitting than Dr. Ross suggested. After reviewing Dr. Ross’s records, she

determined that Dr. Ross “impose[d] greater restrictions than the physical examination

and medical evidence support[ed].” J.A. 76. She noted that Dr. Ross’s opinion “relie[d]

heavily on the subjective report of symptoms and limitations provided by the individual,”

and Dr. Wander regarded Brunson’s treatment decisions as contradicting his self-

reporting about limitations. R. 78. Following these evaluations, Brunson’s application

was initially denied on June 8, 2012.

       In August 2012, Brunson saw Dr. Sennett for his right shoulder injury. He

received physical therapy for a period of time, and ultimately underwent arthroscopic

surgery on his right shoulder in January 2013. After two post-operative appointments,

Dr. Sennett indicated that Brunson was progressing well in his recovery, and

recommended he begin physical therapy for his right shoulder. Brunson abruptly stopped

attending after only two sessions, and the therapy program subsequently discharged him

for noncompliance.

       In June 2013, Dr. Sennett completed an MSS for each of Brunson’s injuries. Dr.

Sennett concluded that Brunson was extremely limited in lifting and carrying, and

restricted in pushing, pulling, reaching, and his ability to hold certain postural positions.

Where the forms asked Dr. Sennett to support his restrictions, he wrote only Brunson’s

diagnoses.

                                              3
       In July 2013, a hearing was held before an Administrative Law Judge (“ALJ”). At

the hearing, both Brunson and a vocational expert testified. Brunson reported that,

despite his injuries, he continued to volunteer with his children’s track team, perform

light housework, take his children to school, and attend church regularly. Then, the

vocational expert testified that a person with Brunson’s current level of function was

capable of performing several light work positions—usher, school bus monitor, and

children’s attendant—available in substantial numbers in the national economy.

       In August 2013, the ALJ issued her opinion.2 She found that, although Brunson

suffered from severe impairments that precluded his ability to return to his previous

work, he retained the ability to engage in other work in the national economy, making

him not disabled for purposes of the Social Security Act. The Appeals Council denied

review, making this a final decision of the Commissioner. Brunson thereafter sought

review in the Eastern District of Pennsylvania, where, after a Magistrate Judge

recommended denying his request for review, the District Court affirmed. This timely

appeal followed.

                                            II.3



       2
         In issuing her opinion, the ALJ followed the five-step sequential process set forth
in 20 C.F.R. § 416.920. The process requires an ALJ to decide whether an applicant (1)
is engaged in “substantial gainful activity;” (2) suffers from a “severe medically
determinable physical or mental impairment;” (3) suffers from “an impairment(s) that
meets or equals one” listed in the regulation’s appendix; (4) has a residual functional
capacity (“RFC”) allowing for performance of “past relevant work;” and (5) can “make
an adjustment to other work.” Id. § 416.920(4)(i)–(v).
       3
         The District Court had jurisdiction to review the Commissioner’s decision
pursuant to 42 U.S.C. § 405(g). We have jurisdiction pursuant to 28 U.S.C. § 1291.
                                             4
       Although we exercise plenary review over an ALJ’s determination of legal

principles, Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995), our review of the

factual findings is for substantial evidence. 42 U.S.C. § 405(g); Chandler v. Comm’r of

Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487

U.S. 552, 565 (1988) (internal quotation marks omitted)). In determining whether

substantial evidence exists, the reviewing court may not substitute its own judgment for

that of the ALJ. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002).

                                           III.

       An individual who is disabled and meets income- and resource-based eligibility

requirements is entitled to benefits under the Social Security Act. 42 U.S.C. § 1381a. To

establish disability, the individual must show that “there is some ‘medically determinable

basis for an impairment that prevents him from engaging in any’ substantial gainful

activity ‘for a . . . twelve-month period.’” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.

1999) (quoting Stunkard v. Sec’y of Health & Human Servs., 841 F.2d 57, 58 (3d Cir.

1988)); 42 U.S.C. § 423(d)(1). The impairment must be such that the individual is “not

only unable to do his previous work but cannot . . . engage in any other kind of

substantial gainful work which exists in the national economy.” 42 U.S.C. §

423(d)(2)(A).

       The District Court affirmed the Magistrate Judge’s recommendation to deny

Brunson’s request for review of the ALJ’s denial of his application for benefits because

                                             5
the ALJ accepted Dr. Wander’s assessment of his physical capabilities and found that

Brunson retained the residual functional capacity (“RFC”) to engage in light work

positions available in the national economy. On appeal, Brunson argues that this

determination was not supported by substantial evidence. In particular, Brunson suggests

that the ALJ inappropriately credited Dr. Wander’s assessment over those of Drs. Sennett

and Ross—both because Dr. Sennett treated him while Dr. Wander merely reviewed his

records, and because of Brunson’s view of their relative qualifications—and discounted

his own testimony as to his pain and limitations. Neither argument is availing.

       An ALJ may “weigh the [conflicting] medical evidence and draw [her] own

inferences.” Brown v. Astrue, 649 F.3d 193, 196–97 (3d. Cir. 2011) (quoting Kertesz v.

Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986)). Additionally, an ALJ may

reject the opinion of a treating physician when it is unsupported and inconsistent with the

other evidence in the record. See Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001)

(quoting 20 C.F.R. § 404.1527(d)(2)).4 Here, the ALJ rejected Dr. Sennett’s opinion in

favor of Dr. Wander’s because of the other evidence in the record. The ALJ noted that,

although Dr. Sennett concluded Brunson was limited in his work abilities, his report

lacked adequate support for this determination. The ALJ also found Dr. Sennett’s

conclusion conflicted with both Brunson’s self-reported daily activities and Dr. Sennett’s

own positive reports after Brunson’s surgery. As with Dr. Sennett, the ALJ found that


       4
         The federal regulation addressing the weight of the treating source’s medical
opinion is now codified at 20 C.F.R. § 404.1527(c)(2), and it continues to provide that a
treating physician’s opinion is not given controlling weight when it is “inconsistent with
the other substantial evidence in” the case record.
                                             6
Dr. Ross’s opinion was inconsistent with the record evidence. As support, she cited Dr.

Ross’s own findings that Brunson maintained normal grip strength and intact reflexes.

Accordingly, the ALJ appropriately gave less weight to Drs. Ross and Sennett’s opinions

in determining Brunson’s RFC.

       As to Dr. Wander’s qualifications, although the relevant regulation does

contemplate consideration of a physician’s specialty in determining the weight to accord

to her opinion, specialty is just one factor to consider. See 20 C.F.R. § 404.1527(c).

Contrary to Brunson’s assertions, Dr. Wander—as a state agency medical consultant—

was per se qualified to issue a medical opinion for the ALJ’s consideration. 20 C.F.R. §

404.1527(e)(2)(i).5 The ALJ relied upon the opinion of Dr. Wander because she regarded

it—unlike the opinions of Drs. Ross and Sennett—as consistent with the medical

evidence presented. See Chandler, 667 F.3d at 361–62 (affirming an ALJ decision

relying upon a state agency medical consultant’s opinion in the presence of conflicting

evidence).

       As to Brunson’s argument that the ALJ improperly discounted his testimony, the

ALJ’s determination as to Brunson’s credibility and consistency is supported by

substantial evidence. See Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). In

considering Brunson’s testimony as to his severe pain and physical limitations, the ALJ


       5
        Similarly, this section has since been recodified without effecting our analysis.
The section addressing evidence from Federal or State agency medical consultants now
appears at 20 C.F.R. § 404.1527(e), with a textual reference to 20 C.F.R. § 404.1513a.
20 C.F.R. § 404.1513a(b)(1) specifically provides that “Federal or State agency medical
or psychological consultants are highly qualified and experts in Social Security disability
evaluation.”
                                             7
found his “credibility . . . to be undermined by his reliance on conservative treatment for

his left shoulder, his post-surgical improvement of his right shoulder, a significant

treatment gap, lack of consistent positive objective findings during the period at issue,

and the presence of widely varied daily activities.” R. 13–14. This explanation presents

substantial evidence to support the finding that Brunson’s testimony lacked credibility in

light of the medical evidence. See Plummer, 186 F.3d at 429.

       Similarly, substantial evidence supports the ALJ’s ultimate determination that

Brunson retained the RFC to engage in light work. The ALJ pointed to the medical

evidence and Brunson’s self-reported activities to demonstrate that he was capable of

performing basic functions in his daily life comparable to those required by light work.

See Plummer, 186 F.3d at 431–32. Further, based on the vocational expert’s testimony,

the ALJ reasonably concluded there were light work positions available to him in the

national economy.

                                            IV.

       Because the ALJ’s decision is supported by substantial evidence, we will affirm

the order of the District Court.




                                             8
