                                                                 NOT PRECEDENTIAL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–

                                             2
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

                                            3
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.”

                                             4
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



                                             5
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.”).

                                             6
       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.

                                             7
                                               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.




                                             10
      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.




                                           11
