                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-2575
                                       __________

                                   BARBARA LOUIS,
                                             Appellant

                                             v.

                        COMMISSIONER SOCIAL SECURITY
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2-18-cv-01191)
                      District Judge: Honorable Timothy J. Savage
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 24, 2020

          Before: AMBRO, GREENAWAY, JR., and PORTER, Circuit Judges

                              (Opinion filed April 14, 2020)
                                     ___________

                                        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.
       Barbara Louis, proceeding pro se, appeals from an order of the United States

District Court for the Eastern District of Pennsylvania denying her request for review of

the Commissioner of Social Security’s denial of her application for supplemental security

income (SSI). For the following reasons, we will affirm.

       Louis filed for SSI benefits effective September 11, 2013, when she was 36 years

old. Her disability claim was predicated on physical ailments, including lower back and

knee pain, and mental health impairments, including bipolar disorder and depression.

Her application was denied at the initial level of administrative review. Pursuant to her

request, a hearing was held before an administrative law judge (ALJ) in 2016. In 2017,

the ALJ rendered an unfavorable decision, and the Appeals Council denied her request

for review. Louis, represented by counsel, filed a civil action in the District Court,

seeking judicial review of the Commissioner’s final decision. The District Court,

adopting the Magistrate Judge’s report and recommendation (R&R), affirmed the

Commissioner’s decision, and this appeal ensued.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the Commissioner’s legal conclusions and review the ALJ’s factual findings to

determine whether they are supported by substantial evidence. Allen v. Barnhart, 417

F.3d 396, 398 (3d Cir. 2005). The substantial evidence standard is “more than a mere

scintilla. It means such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation

                                              2
marks and citation omitted). We are precluded from reweighing the evidence or making

our own factual determinations. See Chandler v. Comm’r of Soc. Sec., 667 F.3d 356,

359 (3d Cir. 2011) (citing Richardson, 402 U.S. at 401).

       A claimant suffers from a “disability” as defined in the Social Security Act if she

is unable “to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death or

which has lasted or can be expected to last for a continuous period of not less than 12

months.” 42 U.S.C. § 423(d)(1)(A). The ALJ applied the five-step sequential evaluation

process for determining whether a claimant is disabled, pursuant to 20 C.F.R.

§ 416.920.1 In doing so, the ALJ considered Louis’s physical, psychological, and

consultative examinations, medical treatment, and testimony. After finding that Louis

was not involved in substantial gainful activity, the ALJ determined that Louis had a

severe impairment of degenerative disc disease, degenerative joint disease, osteoarthritis,

obesity, affective disorders, anxiety, and schizoaffective disorder, but that none of these

impairments met or was medically equivalent to any presumptive disabling listed

impairment. The ALJ further concluded that although Louis was limited in her ability to

perform basic work activities, she retained the RFC to perform sedentary work. In so


1
  Under the sequential evaluation process, the ALJ must determine whether a claimant (1)
is engaged in substantial gainful activity; (2) has a “severe” medical impairment; (3) has
an impairment that would render her per se disabled; (4) retains “residual functional
capability” (RFC) to perform past work; and (5) can perform any other work considering
her RFC, age, education, and work experience. 20 C.F.R. § 404.1520.
                                               3
concluding, the ALJ determined Louis’s statements regarding the intensity, persistence,

and limiting effects of the pain associated with her impairments to be inconsistent with

the medical evidence and other evidence in the record.

       Louis raised three challenges to the ALJ’s decision before the District Court: that

the ALJ did not reasonably explain her RFC assessment, that she rejected medical

opinion evidence without reasonable explanation, and that she failed to reasonably

explain her rejection of written statements from a lay witness. The District Court

determined that the ALJ’s decision was supported by substantial evidence. After a

thorough review of the administrative record, we agree.2

       We first address Louis’s contention that the ALJ failed to adequately support her

RFC assessment. The “residual functioning capacity” is the most a claimant “is still able

to do despite the limitations caused by . . . her impairments.” Fargnoli v. Massanari, 247

F.3d 34, 40 (3d Cir. 2001). Although a claimant bears the burden of establishing her

RFC, see 20 C.F.R. § 416.912(a), the ALJ makes the ultimate disability and RFC



2
  We construe Louis’s informal brief liberally to argue that the ALJ’s decision is
unsubstantiated for the reasons she argued in the District Court. See United States v.
Otero, 502 F.3d 331, 334 (3d Cir. 2007) (noting that pro se pleadings are construed
liberally). However, we will not entertain the arguments that she raises for the first time
on appeal, including that she is currently receiving homecare services and suffers from
asthma, as they are waived, see Smith v. Comm’r Soc. Sec, 631 F.3d 632 (3d Cir. 2010),
and we find no circumstances here warranting an exception to this long-standing rule.
See Matthews v. Apfel, 239 F.3d 589, 592-93 (3d Cir. 2001) (holding that where a
claimant brings new evidence, remand is appropriate only if it is material and good cause
is shown for failing to previously present it).
                                               4
determinations. See 20 C.F.R. §§ 404.1527(d), 404.1546(c); Chandler v. Comm’r Soc.

Sec., 667 F.3d 356, 361 (3d Cir. 2011).

       The ALJ determined that Louis retained the RFC to perform sedentary work as

defined in 20 C.F.R. § 416.967(a) except:

              She can occasionally kneel and crawl; she can occasionally
              be exposed to unprotected heights and moving mechanical
              parts; she can perform simple, routine, and repetitive tasks
              but not at a production rate pace, she is limited to simple
              work-related decisions; she can occasionally interact with
              supervisors and coworkers but can never interact with the
              public; and she can tolerate occasional changes in work
              setting[.]

ALJ Op. at 23. We first reject out of hand Louis’s assertion that the RFC assessment was

merely a summary of the evidence lacking sufficient explanation. The ALJ’s RFC

assessment was approximately seven pages long; the narrative discussion highlighted key

medical and non-medical evidence, noting inconsistencies and distinguishing the

evidence which supported the result. The ALJ gave detailed reasons for discounting

certain opinion evidence and crediting others, and she explained how she accounted for

specific evidence to support certain elements of her RFC assessment. As the District

Court’s more detailed analysis makes clear, the ALJ’s RFC assessment was sufficiently

supported by the record.

                            Physical Impairments

       With respect to the physical RFC, Louis contends that the ALJ failed to provide a

sufficient basis for rejecting Dr. Floyretta Pinkard’s medical opinion evidence. In April
                                            5
2014, Pinkard performed a physical consultative examination of Louis and found that she

had a normal gait, could walk on heels and toes without difficulty, could squat to 75%,

was able to get on and off the examining table and to rise from a chair without difficulty.

Pinkard also found that Louis’s bilateral straight-leg tests were negative, and that she had

no evidence of joint deformity or tenderness and no bilateral knee or leg tenderness.

Louis was found to have moderate left lumbar paraspinal muscle spasm and tenderness,

but full normal 5/5 strength in her upper and lower extremities with normal sensation and

reflexes and intact finger and hand dexterity with normal 5/5 grip strength. R 454-466.

Finally, Pinkard noted that Louis could handle her personal care on a daily basis, and that

she could cook, clean, do laundry and shop on a weekly basis. In a “Medical Source

Statement of Ability to do Work-Related Activities (Physical),” Pinkard opined, in

pertinent part, that Louis could never stoop, kneel, crouch or crawl. R. at 461.3 The ALJ

gave “little weight” to Pinkard’s opinion after concluding that it was unsupported by the

other physical examinations in the record.


3
  Louis argues that a determination that a claimant can never stoop requires a decision of
disabled pursuant to Social Security Ruling (SSR) 96-9p. That Ruling, which addresses
the effect postural and other non-exertional limitations have on the sedentary
occupational base, recognizes that “[a] complete inability to stoop would significantly
erode the unskilled sedentary occupational base and a finding that the individual is
disabled would usually apply.” SSR 96-9p, 61 Fed. Reg. 34478-01 (July 2, 1996). The
Ruling does not mandate a finding of disability; rather it instructs that “consultation with
a vocational resource may be particularly useful” in cases where the claimant “is limited
to less than occasional stooping.” Id.; see also Lauer v. Apfel, 169 F.3d 489, 493 (7th
Cir. 1999) (“There is no basis to assert that SSR96-9 requires a finding of disability in
cases where a claimant is unable to stoop.”).
                                              6
       Although Dr. Pinkard’s opinion must be treated as expert opinion evidence by a

non-examining source, the ALJ was not bound by Pinkard’s findings. See SSR 96-6p.

Whether or not Louis can perform occupational duties is a legal determination reserved

for the Commissioner. See 20 C.F.R. § 404.1527(d). While we agree with Louis that

Pinkard’s assessment was consistent with the other examinations in the record in many

respects, substantial evidence supports the ALJ’s conclusion that the severe functional

limitations found by Pinkard were inconsistent with the medical record as a whole. As

the ALJ noted, Louis’s treatment records, which include radiology reports of x-ray and

MRI results, indicate that she had bilateral knee osteoarthritis which was repeatedly

described as “mild” or “minimal.” See R. at 538, 539, 541, 568-69, 570, 587, 589, 626,

696; see also Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993) (noting that treating

physicians’ reports are entitled to greater weight than non-treating physicians’ or a one-

time examiner’s). And contrary to Louis’s contention, the record is replete with

treatment records indicating that the range of motion in her knees was generally within

normal limits.4 R. at 538, 541, 626, 635, 638-43, 698.5 Indeed, an orthopedic specialist,



4
 The treatment notes from 2012 do not, as Louis maintains, indicate an issue with lower
extremity range of motion. See R. 425, 432.
5
  Some of these reports, which the ALJ relied on, are authored by a Physician’s
Assistant. See, e.g., R. at 721-723. Only licensed physicians and certain other qualified
specialists are considered “[a]cceptable medical sources.” 20 C.F.R. § 404.1527(a); SSR
06–03p, 2006 WL 2329939, at *1 (Aug. 9, 2006). Physician's assistants are defined as
“other sources,” and while not entitled to the same deference, they are entitled to some
                                              7
Dr. Gene Shaffer, “reassure[d]” Louis of the “lack of mechanical issues” with the knee

and recommended the “continued conservative arthritic knee care.” R. at 643; see

Mason, 994 F.2d at 1066-67 (noting that a medical specialist’s opinion is entitled to

greater deference than that of a non-specialist).

       With regard to her history of back pain, an MRI revealed that Louis had “broad

based disc protrusion at L4-L5 . . . with only a small focal midline disc herniation,” and a

radiologic examination indicated “[m]ild spondylosis” and “[f]acet arthritis in the lower

lumbar spine.” R. at 526, 590. Although she had decreased range of motion and muscle

spasms, she consistently had negative straight-leg raising tests, and normal sensations and

muscle strength. See, e.g., R. at 584, 657, 668. Most notably, Louis responded well to

conservative treatment and her condition improved. In July 2015, she received a medial

branch nerve block injection in her lumbar spine; afterwards, her treating physician noted

that the “pain relief was significant.” R. at 665-666. In a follow-up visit, she reported

that “her back feels much better.” R. at 662. As the ALJ observed, from then until her

decision, there was a “rather long treatment gap for [Louis’s] degenerative disc disease.”6




weight. Id. at *2-4; 20 C.F.R. § 404.1527(b). Notably, the physician’s assistant reports
indicate that she was working “under the direct supervision” of a physician. See Molina
v. Astrue, 674 F.3d 1104, 1111 & n.3 (9th Cir. 2012). In any event, her findings are
consistent with those made separately by treating physicians and specialists. See, e.g., R.
at 568, 570, & 643.
6
  Although Louis complained of back pain in September and October 2015, she was
determined “to be getting medication from multiple doctors. Paying with insurance on
some and paying cash on others.” She was discharged from the practice. R. at 657-58.
                                            8
In sum, the overall medical evidence supported the ALJ’s determination that the degree

of Louis’s physical functional limitations was less than that found by Pinkard.

                            Mental Impairments

       Next, Louis contends that the ALJ did not reasonably explain her decision to

discount medical opinion evidence that the severity of her bipolar disorder rendered her

unable to work. Specifically, she maintains that the ALJ assigned too much weight to the

opinion of Dr. Urbanowicz, the non-examining consultative examiner, and too little

weight to Dr. David Frankel, her treating psychiatrist, and Dr. David Waid, an examining

consultant. We disagree. See Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981) ("We

are also cognizant that when the medical testimony or conclusions are conflicting, the

ALJ is not only entitled but required to choose between them.").

       In a letter dated July 20, 2012, Dr. David Frankel, a psychiatrist who had been

treating Louis for two years,7 stated:

              Ms. Louis has been taking medication to control her
              symptoms. Nonetheless, she still has breakthroughs.
              It. Is (sic) not difficult for Ms. Louis to lose control,
              become angry, shout, and be unable to be redirected.
              The last time she did this was over a mistake in
              scheduling. I do not believe that Ms. Louis would be
              able to withstand pressures, and directives in a work
              situation. It would be hard to work with someone
              whose mood and behavior cannot be counted on.


7
 Frankel started treating Louis in 2010, when she presented complaining of chronic
depression, anxiety, and panic attacks, as well as psychotic symptoms, including visual
and auditory hallucinations.
                                             9
R. at 367. The ALJ gave “partial weight” to this letter-opinion because, although

Frankel was a treating source, the letter was written before Louis’s application date and

alleged onset date, and because it was found to be inconsistent with the objective medical

record, which included Frankel’s treatment notes through 2016 which indicate that Louis

has “done well on [the medications],” has become “asymptomatic,” and has remained

“stable for a long period of time.” R. at 516-17, 543-44. The “ALJ may consider all

evidence of record, including medical records and opinions dated prior to the alleged

onset date, when there is no evidence of deterioration or progression of symptoms.”

Pirtle v. Astrue, 479 F.3d 931, 934 (3d Cir. 2007); see also 20 C.F.R. § 416.912

(requiring a claimant to provide medical evidence of an impairment, its severity, and how

it affects her functioning “for any period in question”). It cannot be disputed that, in the

four years after Frankel rendered that opinion, his treatment notes document a marked

and dramatic improvement with regard to Louis’s mental health. R. at 517 (noting that

Louis “has been able to remain euthymic, not psychotic, and [her] anxiety is under

control”). As the record indicates, Louis was consistently calm and cooperative upon

exam, and her prognosis was “good.” R. at 517, 544. The ALJ was therefore entitled to

discount Frankel’s 2012 assessment where it was undermined by the more “detailed,




                                             10
longitudinal picture” provided by his later medical assessments. 20 C.F.R. §

404.1527(c)(2).8

       These treatment records also support the ALJ’s decision to discount the

consultative psychiatric evaluation performed by Waid on January 7, 2014. R. at 447-

450. Waid’s opinion was based solely on his examination of Louis and information that

she provided at the time. He reported that Louis was “highly irritable and suspicious, but

cooperative.” She was “paranoid, delusional” and experiencing auditory hallucinations

during the evaluation. Her intellectual functioning was described as limited. Waid stated

that the “results of the present evaluation appear to be consistent with psychiatric

problems that would significantly impair the claimant’s ability to function with others on

a daily basis.”

       In a “Medical Source Statement of Ability to Do Work-Related Activities

(Physical),” Waid opined that, in light of her mental impairments, Louis’s ability to

interact with the public was extremely limited, her ability to interact with supervisors was

markedly limited, and her ability to interact with co-workers was markedly to extremely

limited. R at 452. He also concluded that her ability to follow instructions was mildly


8
  The record supports the ALJ’s decision to give “partial weight” to the GAF score of 46
assessed by Frankel, which indicates serious symptoms or impairment. As the ALJ
noted, a GAF score provides only a snapshot of a claimant’s level of functioning and is
an unreliable indicator of a claimant’s overall disability status. See Sizemore v.
Berryhill, 878 F.3d 72, 82 (4th Cir. 2017). Louis’s GAF score was assessed in 2010,
prior to her alleged onset date, and at the beginning of her treatment with Dr. Frankel.
See R. at 377.
                                              11
impaired, but her ability to make judgments on simple work-related decisions and to

understand, remember, and carry out complex instructions was markedly limited.

The ALJ was entitled to ascribe only “partial weight” to Waid’s opinion because it was

“based on a one-time evaluation” of Louis and the treatment records since that time show

“far less severe findings upon exam.” ALJ Op. at 28.

       Louis relies on this Court’s decision in Morales v. Apfel, in arguing that the fact

that she is clinically stable and medication compliant does not necessarily support the

conclusion that she can return to work. 225 F.3d 310, 319 (3d Cir. 2000). In Morales,

the ALJ rejected a treating physician’s conclusion “that Morales’s mental impairment

rendered him markedly limited in a number of relevant work-related activities” based on

the ALJ’s personal observations of Morales at the administrative hearing, evidence that

he was malingering, and the same physician’s notations that Morales was “stable and

well controlled with medication.” Id. at 317, 319. In contrast, Dr. Frankel’s opinion that

Louis could not withstand the pressures of work was made at an earlier point in her

treatment when she was still experiencing psychotic “breakthroughs.” R. at 367; cf.

Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 356 (3d Cir. 2008) (reversing where

the ALJ’s reliance on the physician’s treatment note that the claimant’s symptoms were

stable with medication went against that physician’s coinciding conclusion that the

claimant was disabled). And after years of treatment, there were years of records noting




                                             12
Louis’s stability and lack of any symptoms. Moreover, the ALJ’s determination that

Louis’s mental impairment did not prevent her from engaging in substantial gainful

activity – the relevant inquiry – was supported by other objective evidence in the record,

including that she was consistently noted to be calm and cooperative, reportedly got

along with immediate family,9 friends, and neighbors, could shop in stores by herself,

attended community events, and had consistently normal findings with her cognition,

memory, speech, judgment and insight.10 See Morales, 225 F.3d at 319; R. at 517, 544.

       Finally, Louis challenges the ALJ’s decision to give “partial weight” to the two

third-party function reports submitted by her mother. See R. at 284-291, 292-300. The

ALJ thoroughly discussed these reports but discounted them in part because her mother

was not an acceptable medical source or a disinterested party. ALJ OP. at 29. Even

assuming it was error to rely on these bases, the error was harmless. See Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). The ALJ discounted Louis’s mother’s reports

because they were inconsistent with the previously discussed objective medical evidence


9
  Although the records indicate that Louis reported getting along with her family, she
testified before the ALJ that she does not speak to her brothers and sisters. See R. at 75-
76.
10
   This record evidence was the basis for Dr. Urbanowicz’s opinion, which the ALJ gave
“great weight,” that Louis was capable of performing a wide range of simple, unskilled
tasks in a regular work environment despite her mental impairment. R. at 94-109.
Specifically, Urbanowicz concluded that Louis was moderately limited in her ability to
maintain attention, concentration, persistence, or pace, and moderately limited in her
ability to carry out detailed instructions and to interact with the general public, coworkers
and supervisors. R. at 107-08.
                                              13
and medical opinions. This reason was sufficient by itself to support the ALJ’s decision.

See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“An ALJ need only give

germane reasons for discrediting the testimony of lay witnesses. Inconsistency with

medical evidence is one such reason.”) (internal citation omitted). Moreover, we agree

with the District Court that the ALJ’s RFC assessment accommodated Louis’s limitations

in concentration, persistence, and pace to the extent that her mother’s testimony in these

areas was consistent with the record.

       For these reasons, and in light of our overall examination of the record, we agree

with the District Court that substantial evidence supports the ALJ's decision to deny

Louis’s SSI application. Accordingly, we will affirm the judgment of the District Court.




                                            14
