                                                      NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                              No. 11-2633
                              ___________

                    VANDETTA A. CUNNINGHAM,
                                   Appellant

                                    v.

               COMMISSIONER OF SOCIAL SECURITY
               ____________________________________

              On Appeal from the United States District Court
                  for the Middle District of Pennsylvania
                  (D.C. Civil Action No. 4:10-cv-01374)
                 District Judge: Honorable Malcolm Muir
               ____________________________________

              Submitted Pursuant to Third Circuit LAR 34.1(a)
                            December 11, 2012

     Before: SLOVITER, GREENAWAY, JR. and BARRY, Circuit Judges

                    (Opinion filed: December 13, 2012)
                               ___________

                               OPINION
                              ___________

PER CURIAM
         Vandetta A. Cunningham appeals from an order of the District Court affirming the

decision of an Administrative Law Judge (“ALJ”) to deny Cunningham‟s applications for

disability insurance benefits and supplemental security income. We will affirm.

                                              I.

         Cunningham applied for disability insurance benefits and supplemental social

security income in 2007, alleging that she had been disabled since May 2004 due to

major depression disorder, anxiety disorder, insomnia, gastrointestinal reflux disorder,

fibromyalgia, panic attacks, asthma, allergies, headaches, somatoform disorder, and

hypertension.1 She was almost age forty-two at the time she applied for benefits, and had

worked as a licensed practical nurse from 1992 until 2004. Cunningham worked for two

months as a home health care nurse in 2006, but had not worked since that time.

         An ALJ conducted a hearing and denied Cunningham‟s applications, concluding

that the record as a whole did not establish that she was disabled. The ALJ found that

Cunningham has hypertension, asthma, fibromyalgia/myofascial pain

syndrome/myalgias, osteoarthritis, migraine headaches, anxiety disorder, depressive

disorder with associated insomnia, and a history of somatoform disorder, which are

severe but do not require an automatic determination of disability. Specifically, the ALJ

found that the evidence regarding Cunningham‟s physical impairments did not match or

equal the criteria of any impairment identified by regulation as presumptively severe


1
    A prior application for benefits was denied in 2006.
                                               2
enough to preclude gainful activity (“listed impairment”). The ALJ made a similar

finding regarding Cunningham‟s mental impairments.

       The ALJ then considered the impact of Cunningham‟s impairments on her ability

to perform work, finding that her osteoarthritis, fibromyalgia, hypertension, and migraine

headaches limit her to light activity. As a result, the ALJ found that Cunningham was

unable to perform her past relevant work as a licensed practical nurse because it required

medium exertion. The ALJ also found that Cunningham‟s other impairments further

limit her ability to work. Specifically, asthma and allergies require her to avoid frequent

exposure to fumes, odors, dusts, gases, chemical irritants, temperature extremes, extreme

dampness or humidity, and environments with poor ventilation, excessive noise, or

excessive vibration. Her anxiety disorder, depressive disorder, and history of

somatoform disorder limit her to simple, repetitive tasks and decisions, a relatively

change-free work environment, occasional interaction with others, and a stress-free

environment. Based on the testimony of a vocational expert who considered these

limitations, the ALJ found that Cunningham has the capacity to perform certain jobs,

including a racker in a bakery, a bagger in a dry cleaner or laundry, and a small parts

assembler of plastic or medical products. Accordingly, the ALJ found that Cunningham

is not disabled.

       Cunningham appealed. The Appeals Council of the Social Security

Administration declined further review, making the ALJ‟s decision the final decision of

                                             3
the Commissioner of Social Security. Cunningham then sought judicial review of the

ALJ‟s decision. The District Court affirmed and entered judgment in favor of the

Commissioner. This appeal followed.




                                           4
                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is deferential, as it

is limited to determining whether the ALJ‟s decision is supported by substantial

evidence. See, e.g., Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Substantial

evidence is “„more than a mere scintilla,‟ and is defined as „such relevant evidence as a

reasonable mind might accept as adequate.‟” Plummer v. Apfel, 186 F.3d 422, 427 (3d

Cir. 1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)). If 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. Hartranft v. Apfel, 181

F.3d 358, 360 (3d Cir. 1999).

                                            III.

       An individual who is disabled, and otherwise eligible based on income and

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

establish disability, “a claimant must demonstrate [that] 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, 186 F.3d at 427

(quoting Stunkard v. Sec‟y of Health & Human Servs., 841 F.2d 57, 59 (3d Cir. 1988)).

A claimant is unable to engage in any substantial gainful activity “only if his physical or

mental impairment or impairments are of such severity that he is not only unable to do his

previous work but cannot, considering his age, education, and work experience, engage in

                                             5
any other kind of substantial gainful work which exists in the national economy.” Id. at

427-28 (quotation marks omitted). To determine whether a claimant is disabled, the

Social Security Administration considers, in sequence, whether the claimant: (1) is

engaged in substantial gainful activity; (2) has a severe impairment; (3) has an

impairment that is the same as or equivalent to an impairment listed by the

Administration as presumptively precluding any gainful activity; (4) can return to past

relevant work despite the impairment; and (5) is capable of performing other work in the

national economy. 20 C.F.R. § 404.1520; Brewster v. Heckler, 786 F.2d 581, 583-84

(3d Cir. 1986).

       Cunningham argues on appeal that the ALJ: (1) substituted her own opinion for

the objective medical evidence to determine that Cunningham‟s impairments did not

match or equal listed impairments; (2) improperly used Cunningham‟s ability to engage

in minimal activities of daily living to conclude that she could work full-time; (3)

disregarded her psychologist‟s opinion that she was unable to work; and (4) disregarded

the vocational expert‟s testimony and identified jobs incompatible with Cunningham‟s

limitations. Cunningham also argues that the District Court erred by not reviewing

additional evidence she submitted to the Appeals Council. For the reasons that follow,

we conclude that these arguments lack merit.

       A.     Substantial Evidence Supports the ALJ’s Determination that
              Cunningham’s Impairments Did Not Match or Equal Listed
              Impairments

                                             6
       Cunningham argues that the ALJ relied on her own opinion, rather than the

medical evidence, to determine that her impairments did not match or equal any listed

impairments.2 To match a listed impairment, a claimant‟s impairment must satisfy all of

the criteria for the listing. 20 C.F.R. § 404.1525(c)(3). A claimant‟s impairment is

“medically equivalent” if it is at least equal in severity and duration to the criteria of a

listed impairment. 20 C.F.R. § 404.1526(a).3 This is the focus of step 3 of the sequential

analysis for determining whether a claimant is disabled, and if a claimant‟s impairment

matches or equals a listed impairment, then he or she is disabled and no further analysis

is necessary. See, e.g., Brewster, 786 F.2d at 583-84.

       In this case, the ALJ discussed the evidence regarding Cunningham‟s

hypertension, asthma, fibromyalgia/myofascial pain syndrome/myalgias, osteoarthritis,

migraine headaches, anxiety disorder, depressive disorder, and history of somatoform

disorder in some detail. See Supplemental Appendix (“S.A.”) at 24-34. The ALJ

identified the musculoskeletal system, respiratory system, cardiovascular system, and

neurological sections of the listings as relevant to Cunningham‟s physical impairments.


2
  In the District Court, Cunningham challenged the ALJ‟s determination only as it
pertained to her anxiety disorder, depression, and headaches. Her assertion on appeal
that the “entire medical records[sic]” establish her disability appears to dispute all of the
ALJ‟s findings, so we will review the findings for all impairments in our consideration of
this issue.
3
  Medical equivalence can be found when a claimant has: (1) a listed impairment with
medical findings that are at least of equal significance to the required criteria; (2) an
impairment closely analogous to a listed impairment; or (3) a combination of
impairments with medical findings of equal significance to the criteria of an analogous
                                               7
The listings are detailed and include very specific criteria. We will note only that, in

general, the disorders of the musculoskeletal system are characterized by the inability to

walk effectively or to perform fine and gross movements effectively. 20 C.F.R. pt. 404,

subpt. P, app. 1, § 1.00. Disorders of the respiratory system are characterized by

irreversible loss of pulmonary function. Id. § 3.00. Disorders of the cardiovascular

system are characterized by improper functioning of the heart or circulatory system. Id.

§ 4.00. Neurological disorders include epilepsy, brain tumors, multiple sclerosis,

traumatic brain injury, amyotrophic lateral sclerosis, and persistent disorganization of

motor function. Id. § 11.00. The ALJ determined that Cunningham‟s medical evidence

did not contain findings that matched or equaled the criteria for any subsection of those

listings. We will highlight some of the evidence supporting that decision.

       Regarding osteoarthritis and fibromyalgia/myofascial pain syndrome/myalgias, the

evidence showed that Cunningham had moderate spasms and tenderness in the trapezius

and musculature of the back, moderate degenerative arthritis in both knees, minimal

degenerative arthritis in both ankles and the small joints of both feet, moderate

degenerative changes in the small joints of the hands, but, in general, she had minimal

distress and normal range of motion in most areas examined. S.A. at 26-27, 32.

Moreover, there was no evidence of significant motor or sensory loss, or significant

degenerative abnormality of the spine. Id. at 37. The most recent evidence from her


listed impairment. 20 C.F.R. § 404.1526(b).
                                           8
rheumatologist indicated a “reasonably stable” physical exam, good pain control with

medication, and a general assessment that Cunningham was doing better than might have

been anticipated. Id. at 27. Regarding asthma and hypertension, the evidence tended to

show that both were made better or controlled by medication and that Cunningham had

clear lungs, a regular heart rate and rhythm, and no edema of the extremities. Id.

Regarding headaches, the medical evidence showed that Cunningham consistently

reported migraines. She was treated with medication, which helped to some extent. Id.

There was no evidence that Cunningham had ever been referred for diagnostic studies for

her migraines. Id. Cunningham also reported improvements at times in her migraines.

Id. at 33.

       As for Cunningham‟s depressive disorder with associated insomnia, anxiety

disorder, and history of somatoform disorder, the ALJ identified the affective disorders,

anxiety related disorders, and somatoform disorders as the relevant listings. In general,

the required level of severity for these disorders may be established when the criteria for

both parts A and B of the listing are satisfied. 4 20 C.F.R. pt. 404, subpt. P, app. 1,

§§ 12.04, 12.06, 12.07. Part B for each of these disorders requires that a claimant‟s

impairments result in at least two of the following: (1) marked restriction of activities of

daily living; (2) marked difficulties in maintaining social functioning; (3) marked


4
 The part A criteria are medical findings that substantiate the presence of the mental
disorder; the part B criteria are functional limitations resulting from the impairment that
are incompatible with the ability to do any gainful work. 20 C.F.R. pt. 404, subpt. P, app.
                                               9
difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of

decompensation, each of extended duration. Id. A “marked” restriction or difficulty is

one that is more than moderate but less than extreme and that “interfere[s] seriously with

[the] ability to function independently, appropriately, effectively, and on a sustained

basis.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C). The ALJ considered in detail the

evidence regarding Cunningham‟s functional limitations stemming from her mental

impairments and found that they did not satisfy the Part B criteria. S.A. at 28-34. Again,

we will note briefly only some of the evidence supporting the ALJ‟s decision.

       The ALJ found mild limitations on the activities of daily living, relying in part on

the fact that Cunningham worked on a part-time basis in 2006 and reported that she cared

for her own personal needs, drove locally, made simple meals for herself, woke her

children for school, attended medical appointments, performed household chores, went

shopping on a weekly basis, paid her bills, and managed a checkbook and savings

account. S.A. at 28. The ALJ also relied on the records of various doctors and therapists

indicating that Cunningham cared for a mentally handicapped daughter, had gone on an

out-of-state trip, and planned to go on a cruise vacation. Id. The ALJ found moderate

limitations in social function, based in part on Cunningham reporting that she lives with

three children, one of whom has special needs, speaks with friends and family on a

weekly or biweekly basis, had at one time attended church, had taken care of people in


1, § 12.00(A).
                                             10
their homes, and had never been fired or laid off for failing to get along with others. Id.

at 29. The ALJ also relied on reports from doctors and therapists that Cunningham was

pleasant and cooperative during appointments, and indications that she was getting out

more and less angry. Id. The ALJ found moderate limitations in concentration,

persistence, and pace, given Cunningham‟s claims that she has difficulty motivating

herself and concentrating. Id. But Cunningham indicated that she could follow simple

written instructions and manage her basic finances, and had at one time told a doctor she

only occasionally had difficulty focusing. Id. Doctors also reported that Cunningham

was alert during appointments and had normal speech and logical thought processes, and

the ALJ noted that she showed no “overt” lapses in concentration during the

administrative hearing. Id. Finally, the ALJ did not find repeated episodes of

decompensation,5 observing that Cunningham had never been hospitalized for a mental

condition. Id. at 30. Doctors‟ reports indicated that her mental impairments seemed to be

controlled with medication and regular psychotherapy sessions. Id. Furthermore, on one

occasion, a psychiatric resident noted that Cunningham “seemed to have a lot invested in

illness (i.e., disability, housing).” Id.



5
  Episodes of decompensation are defined as a temporary increase in symptoms
accompanied by a loss in adaptive functioning. 20 C.F.R. pt. 404, subpt. P, app. 1,
§ 12.00(C)(4). They may be inferred from documents showing alteration in medication
or the need for more structured psychological support, such as hospitalization. Id.
Repeated episodes of extended duration are three episodes within a year, each lasting at
least two weeks. Id.
                                           11
       In contrast to the ALJ‟s detailed discussion of the medical evidence, Cunningham

offers only the cursory assertion that the ALJ substituted her own opinion for that

evidence. She does not, however, indicate what aspect of the ALJ‟s decision reflects a

subjective opinion, nor does she identify any particular medical evidence that was

overlooked.6 Furthermore, she does not identify what medical evidence would establish

that her impairments met or equaled listed impairments and would thus undermine the

ALJ‟s determination to the contrary.

       To the extent that Cunningham argues that the ALJ overlooked her subjective

complaints about chronic pain and other symptoms, we note that the ALJ considered

those complaints in detail. S.A. at 31-34. However, the ALJ found Cunningham‟s

statements about the “intensity, persistence, and limiting effects” of her symptoms not

credible to the extent they conflicted with medical evidence or her self-reported activities

of daily living. Id. at 31. The ALJ characterized Cunningham‟s subjective complaints as

indicating that she experienced “totally debilitating symptomatology,” id., but explained

how other evidence contradicted the claim. Id. at 31-34. We find the ALJ‟s explanation


6
  Cunningham highlights the fact that she was on numerous medications in order to
“function on a minimal level.” The ALJ acknowledged the list of medications provided
by Cunningham and addressed her complaint that they make her dizzy, sluggish, and
tired, noting that it was contradicted by reports from several doctors indicating that
Cunningham had said she was managing with her medications. S.A. at 32-33. The
ALJ‟s handling of this issue comports with 20 C.F.R. § 404.1529(c)(3), which allows
consideration of the effect of a claimant‟s medication so long as it is consistent with the
objective medical evidence.

                                             12
persuasive and grounded in the record, and will not repeat her extensive discussion here.

In reaching this conclusion, we observe that Cunningham has not cited any objective

medical evidence (other than the opinion of her psychologist which is discussed in

Section C, infra) to support her claim that her pain and other symptoms are more severe

than the ALJ found them to be. Accordingly, we conclude that it was appropriate for the

ALJ to discount any subjective complaints that were contradicted by medical evidence or

Cunningham‟s own statements. See Burnett v. Comm‟r of Soc. Sec. Admin., 220 F.3d

112, 122 (3d Cir. 2000) (allegations of pain must be consistent with objective medical

evidence and an ALJ must explain the reasons for rejecting such testimony).

       In sum, we conclude that there is substantial evidence to support the ALJ‟s

determination that Cunningham‟s physical and mental impairments did not match or

equal the criteria for the relevant listed impairments and thus did not entitle her to a

finding of disability at step 3 of the sequential analysis.

       B.     The ALJ Properly Assessed Cunningham’s Ability to Engage
              in Activities of Daily Living

       Cunningham argues that the ALJ should not have used her ability to perform some

minimal activities of daily living to determine that she was able to work full time. This

argument challenges the ALJ‟s determination at step 4 of the sequential analysis, i.e.,

that Cunningham has the residual functional capacity to perform light work subject to

some limitations. Residual functional capacity is what a claimant can still do despite his

or her limitations, and it is assessed using all relevant evidence from the record, including
                                              13
statements from medical sources and a claimant‟s own description of his or her

limitations. 20 C.F.R. § 404.1545(a)(1), (3). Thus, it is appropriate for an ALJ to

consider the number and type of activities in which a claimant engages when assessing

his or her residual functional capacity. See Burns v. Barnhart, 312 F.3d 113, 129-30 (3d

Cir. 2002). Furthermore, the ALJ was required to consider Cunningham‟s activities of

daily living to assess the severity of her mental impairments, see 20 C.F.R. pt. 404, subpt.

P, app. 1, § 12.00(A), (C)(1), and was permitted to consider them to evaluate the

credibility of Cunningham‟s subjective complaints of pain and other symptoms. See 20

C.F.R. § 404.1529(c)(3).

       Although Cunningham cites several decisions in support of her argument,7 none

of them are from this Court or binding upon us. Furthermore, those decisions do not aid

Cunningham because they do not hold that ALJs are prohibited from considering a

claimant‟s activities of daily living. Instead, the cases involved situations where an ALJ

accorded too much weight to a claimant‟s activities of daily living compared to other

evidence in the record. To the extent that Cunningham might be making such an

argument here, we note that the ALJ‟s residual functional capacity determination in this

case was based on the medical evidence relating to her impairments, as well as her

activities of daily living. S.A. at 27-30.


7
 Tang v. Apfel, 205 F.3d 1084 (8th Cir. 2000); Eback v. Chater, 94 F.3d 410 (8th Cir.
1996); Lester v. Chater, 81 F.3d 821 (9th Cir. 1995); and Peterman v. Chater, 946 F.
Supp. 734 (N.D. Iowa 1996).
                                            14
       C.     The ALJ Gave Sufficient Weight to the Opinion of Cunningham’s
              Psychologist

       Cunningham contends that the ALJ disregarded the opinion of her psychologist,

Michael Moran, that she was unable to work. This opinion was expressed in three

documents in the record. See A.R. at 379-81, 406. The ALJ accorded diminished weight

to Moran‟s opinion because it was inconsistent with other evidence from him and from

the record as a whole, and because his opinion regarding Cunningham‟s migraine

headaches was beyond his area of expertise. S.A. at 35.

       As a general rule, “[t]reating physician‟s reports should be accorded great weight,

especially „when their opinions reflect expert judgment based on a continuing

observation of the patient‟s condition over a prolonged period of time.‟” Plummer, 186

F.3d at 429 (quoting Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987)). However, a

treating physician‟s opinion may be rejected on the basis of contradictory medical

evidence, or may be accorded less weight depending upon the extent to which a

supporting explanation is provided for the opinion. Id. In addition, an ALJ does not give

any “special significance” to a physician‟s opinion that a patient is unable to work

because the agency is responsible for determining whether a claimant meets the statutory

definition of disability. See 20 C.F.R. § 404.1527(d)(3).

       Here, Moran‟s opinion that Cunningham was unable to work full time was not

entitled by regulation to any special significance. There is little to his opinion other than

statements that Cunningham suffers from severe migraines, her concentration and
                                             15
attention span waiver, and she is “quick to anger and has violent type thoughts.” S.A. at

380. There is virtually no supporting explanation in the letters for these statements,

which by itself would justify the ALJ‟s decision to accord them little weight.

Furthermore, Moran‟s opinion of the severity of Cunningham‟s mental limitations, which

one may infer from his opinion that they would prevent her from working, is inconsistent

with his treatment notes. See A.R. at 300, 379, 383-406. His opinion is also inconsistent

with records from Cunningham‟s psychiatrists, id. at 296-98, 409-15, and with the report

from the state agency consultant who evaluated the record. Id. at 325-337. As for

migraines, the ALJ explained that Moran is a psychologist, not a medical doctor, and that

the issue is therefore outside the area of his expertise. S.A. at 35. We therefore conclude

that the ALJ‟s decision to accord diminished weight to Moran‟s opinion is consistent

with the regulations and our prior decisions and is supported by substantial evidence.

       D.     The ALJ Did Not Disregard the Vocational Expert’s Testimony

       Cunningham claims that the vocational expert testified that she would be unable to

work due to her impairments and that the ALJ disregarded that testimony when she

determined that Cunningham could perform light work subject to certain limitations.

This reflects a mistaken understanding of the proceedings. During the hearing, the ALJ

posed several hypothetical questions to the vocational expert about the type of work an

individual with varying limitations could perform. The ALJ first asked the vocational

expert whether a person with Cunningham‟s education, training, and work experience,

                                            16
who was limited to medium work, simple, repetitive tasks and decisions, and few

interactions with supervisors, colleagues, and the public could perform Cunningham‟s

past work (i.e., licensed practical nurse). The expert said no. A.R. at 48-49. Consistent

with this testimony, the ALJ found that Cunningham could not perform her past relevant

work. S.A. at 35. But the ALJ went on to pose a hypothetical that included all of

Cunningham‟s limitations, i.e., light work and the non-exertional limitations concerning

tasks, interactions, and environmental conditions. A.R. at 50-51. The vocational expert

testified that an individual with those limitations could perform jobs such as a racker in a

bakery, a bagger in a dry cleaner or laundry, and a small parts assembler. Id.

Accordingly, the ALJ found that Cunningham could perform those jobs, which exist in

the national economy, and that she was therefore not disabled. S.A. at 36-37.

       Cunningham does not appear to challenge the sufficiency of the ALJ‟s

hypothetical, and the record indicates that it was accurately tailored to her situation and

included all limitations that were supported by the evidence. See Johnson v. Comm‟r of

Soc. Sec., 529 F.3d 198, 205-06 (3d Cir. 2008) (observing that ALJs often seek advisory

testimony from a vocational expert and that an ALJ must pose hypotheticals that

accurately portray a claimant‟s impairments.) Cunningham only argues that what she is

to avoid – fumes, odors, dust, gases, chemical irritants, poor ventilation, temperature

extremes, excessive noise and vibration, and proximity to co-workers and the public –

must certainly exist in the jobs the ALJ found she could perform. This is merely

                                             17
speculation,8 whereas the ALJ was entitled to use the vocational expert‟s testimony. See

20 C.F.R. § 404.1566(e).

       E.     The District Court Properly Refrained from Considering the Evidence
              Cunningham Submitted to the Appeals Council

       Cunningham submitted a lengthy statement to the Appeals Council when she

appealed the ALJ‟s decision, in which she explained that she does not care for her

special- needs daughter, is less able to care for herself than the ALJ determined, must

take many medications to be able to do minimal activities, is in financial distress, and did

not go on the cruise because of a fight with her friend. Cunningham also submitted

several documents in support of her statement, including an excerpt of school records for

her daughter, a letter from the cruise line, and termination notices from utility companies.

She faults the District Court for failing to address this evidence, but the District Court

was not permitted to do so. Even though “evidence considered by the Appeals Council is

part of the administrative record on appeal, it cannot be considered by the District Court

in making its substantial evidence review once the Appeals council has denied review.”

Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001). In addition, it would have been

proper for the District Court to remand the case based on that evidence only if

Cunningham had shown good cause for not presenting it to the ALJ, which she has not


8
  Cunningham‟s reliance on the descriptions of the jobs in the Dictionary of Occupational
Titles does not aid her argument. The descriptions indicate that all three of the jobs are
listed as light work and do not contain any information about environmental conditions
associated with the jobs.
                                             18
done. Id. at 594. Accordingly, the District Court committed no error in regard to the

additional evidence.

       Finally, Cunningham requests that we consider the fact that she has been awarded

disability benefits as of August 30, 2008 – the day after benefits were denied in the

matter presently before us. But the fact that another ALJ found Cunningham to be

disabled does not, in itself, warrant remand or reversal. See Allen v. Comm‟r of Soc.

Sec., 561 F.3d 646, 652-53 (6th Cir. 2009). Remand or reversal based on the subsequent

favorable decision would be appropriate only if that decision was based on new and

material evidence that Cunningham had good cause for not raising in the prior




                                            19
proceeding. Id. at 653. Cunningham has not presented any such evidence.

                                            VI.

       Appellee‟s motion for leave to file a supplemental appendix is granted. For the

reasons presented herein, we will affirm the decision of the District Court that the ALJ‟s

determination is supported by substantial evidence.




                                            20
