                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 15-3684
                                     ______________

                                DAVID JOHN KANAKIS,
                                             Appellant

                                             v.

                      COMMISSIONER OF SOCIAL SECURITY
                               ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                            (D.C. No. 2-14-cv-01011)
                     District Judge: Hon. Gustave Diamond
                                ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 20, 2016
                                   ______________

             Before: SMITH, HARDIMAN, and SHWARTZ, Circuit Judges.

                                  (Filed: May 23, 2016)

                                     ______________

                                        OPINION*
                                     ______________

SHWARTZ, Circuit Judge.


       John Kanakis appeals from the order of the District Court affirming the decision of

       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
the Administrative Law Judge (“ALJ”) denying his applications for disability insurance

benefits (“DIBs”) and supplemental social security income (“SSI”). For the reasons set

forth herein, we will affirm.

                                                 I

         Kanakis suffers from chronic back pain and arthritis. He filed applications for

DIBs and SSI in February 2013, alleging that pain, stiffness, and mobility problems have

prevented him from working since November 7, 2012.1 At a hearing before the ALJ in

May 2014, Kanakis testified that his pain remains at “a four to a six,” on a scale of one to

ten, so long as he stretches and takes medication, otherwise it “goes up” to “a nine or a

ten.” R. 48. Kanakis also testified that he spends much of the day in bed and sometimes

uses a cane to get around, although he is able to shower, dress himself, drive short

distances, shop, and prepare his own meals.

         The ALJ also reviewed medical records, including records from Dr. Lawrence

Ferlan, Kanakis’s primary care physician, Dr. Clifford Vogan, a physician who examined

Kanakis on behalf of the Social Security Administration, and Dr. Edward Reidy, an

orthopedic specialist. Each recounted Kanakis’s medical complaints as well as the results

of their respective examinations, which included findings concerning his mobility,

reflexes, strength, and range of motion.

         Based on Kanakis’s testimony and his medical records, the ALJ concluded that




         1
             Kanakis testified that he injured himself that day while helping a friend move
boxes.
                                                 2
Kanakis has several severe impairments,2 including degenerative disc disease of the

lumbar spine and chronic back pain. Observing that Kanakis is nonetheless able to

“manage his personal needs,” R. 17, the ALJ found that Kanakis’s “statements

concerning the intensity, persistence and limiting effects of [his] symptoms are not

entirely credible,” R. 19. The ALJ also considered the testimony of a Vocational Expert

and found that although Kanakis must have the option to sit or stand at any job due to the

pain and stiffness in his back, and can only occasionally be required to climb stairs,

balance, stoop, or kneel, he retains the residual functional capacity to perform sedentary

work, and is capable of performing several jobs that exist in significant numbers in the

national economy, including ticket checker and document preparation clerk.3

Accordingly, the ALJ determined that Kanakis is not entitled to DIBs or SSI. The

District Court affirmed. Kanakis appeals.

                                             II4

       We exercise plenary review over the ALJ’s determination of legal issues, Chandler

v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011), and review his factual findings

and final determination under the deferential “substantial evidence” standard, 42 U.S.C.

§ 405(g); Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999).


       2
          A “severe impairment” is “any impairment or combination of impairments which
significantly limits [a claimant’s] physical or mental ability to do basic work activities.”
20 C.F.R. § 404.1520.
        3
          The ALJ found that Kanakis could perform sedentary work but not “any past
relevant work.” R. 21. Kanakis had worked as a cook, construction worker, and truck
driver.
        4
          The District Court had jurisdiction under 42 U.S.C. § 405(g). We have
jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g).
                                             3
Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.

2005) (internal quotation marks and citation omitted). It is “more than a mere scintilla

but may be somewhat less than a preponderance of the evidence.” Id. (internal quotation

marks and citation omitted). If, upon review of the record as a whole, Schaudeck, 181

F.3d at 431, we determine that the ALJ’s findings are supported by substantial evidence,

we are bound by those findings even if we would have decided the inquiry differently,

Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

                                            III

       Kanakis argues first that the ALJ’s determination that he retains the residual

functional capacity to perform sedentary work is not supported by substantial evidence.

We disagree. Though Kanakis’s pain, stiffness, and mobility problems may be

significant, the medical evidence supports the ALJ’s conclusion that his symptoms are

reasonably manageable and that he remains capable of performing physically

undemanding work. For example, Dr. Ferlan indicated that when he examined Kanakis

in January 2013, Kanakis responded well to pain medication, was able to “bend[] over

fairly well,” and exhibited “[n]o evidence of severe pain or spasm.” R. 264. Following

another examination a few months later, Dr. Ferlan indicated that Kanakis’s back

continued to improve, due in part to physical therapy, and that Kanakis was feeling

“fine.” R. 294. Dr. Reidy, who examined Kanakis in January 2014, offered a similar

assessment, describing his patient’s physical health as “decent overall” and his lumbar

range as “pretty good.” R. 351, 353. These assessments, together with Kanakis’s

                                             4
testimony that he is able to shower, dress himself, drive, go shopping, and perform

routine household activities, as well as lift between six and ten pounds, provided

substantial evidence for the ALJ’s residual functional capacity determination.

       Kanakis claims that in assessing his residual functional capacity, the ALJ

improperly discounted the medical opinions of Dr. Ferlan, who later completed a

disability form indicating that Kanakis’s ability to work is limited, and Dr. Vogan, who

reached the same conclusion. While Kanakis is correct that the opinions of treating and

examining physicians typically deserve significant weight, see, e.g., 20 C.F.R. §

404.1527(d)(1)-(2), “the law is clear that [such] opinion[s] . . . do[] not bind the ALJ on

the issue of functional capacity.” Chandler, 667 F.3d at 361 (internal quotation marks,

citation, and alterations omitted). Rather, the ALJ, and “not treating or examining

physicians . . . [,] must make the ultimate . . . [residual functional capacity]

determinations,” id., taking into consideration multiple factors, including the extent to

which a medical opinion is consistent with the record as a whole and supported by

relevant evidence, see 20 C.F.R. § 404.1527(c)(3)-(4).

       Here, the ALJ declined to credit Dr. Ferlan’s opinion because it is “clearly

inconsistent with his own treatment records,” including his report, issued two months

before he completed the disability form, indicating that Kanakis’s condition was

improving and that Kanakis was feeling fine. R. 21. The ALJ declined to credit Dr.

Vogan’s opinion because it was based primarily on Kanakis’s “subjective assertions at

the time of the examination” and was inconsistent with Dr. Reidy’s assessment that

Kanakis is in decent overall health. R. 21. The ALJ fully considered the opinions of Dr.

                                               5
Ferlan and Dr. Vogan, and adequately explained why they are entitled to little weight.

For this reason, and because the ALJ’s conclusion regarding Kanakis’s residual

functional capacity is supported by substantial evidence, we will not disturb it.

       We turn now to Kanakis’s argument regarding the testimony of the Vocational

Expert. At the hearing, the ALJ asked the Vocational Expert whether a hypothetical

person of Kanakis’s age, education, and past work experience who could only

occasionally climb stairs, stoop or kneel, and required a “sit/stand at will option,” R. 57,

could perform any jobs in the national economy. The Vocational Expert indicated that

there were several jobs that such a person could perform, including ticket checker and

document preparation clerk. The ALJ then asked the Vocational Expert whether the

hypothetical person could perform such jobs if the person also needed to miss more than

one day of work per month and lie down for three hours each day. According to the

Vocational Expert, these additional limitations “would eliminate all work at all exertional

levels.” R. 58.

       Kanakis claims that he has these additional limitations and, to the extent the

Vocational Expert testified that a person with such limitations would be unable to find

work, the ALJ improperly ignored his testimony in concluding that there are jobs that

Kanakis can perform. This argument is unavailing. An ALJ need not accept the

testimony of a Vocational Expert unless it is based on a claimant’s credibly established

limitations. Rutherford, 399 F.3d at 554; see also Craigie v. Bowen, 835 F.2d 56, 57-58

(3d Cir. 1987) (“Inasmuch as the administrative law judge did not have to accept [the

claimant’s] testimony, he did not have to credit the [vocational expert’s] testimony that

                                              6
was predicated upon it.”). Here, substantial evidence supports the ALJ’s decision not to

credit Kanakis’s claims regarding the frequency of his need to miss work and lie down,

particularly the reports of Dr. Ferlan and Dr. Reidy indicating that Kanakis felt fine and

was relatively healthy and Kanakis’s testimony about the tasks he regularly performs.

Because the ALJ did not err in concluding that the evidence did not support the assertion

that Kanakis would need to miss more than one day of work per month and lie down for

three hours each day, he did not err in disregarding the testimony of the Vocational

Expert related to a hypothetical person with such additional requirements.

       Finally, we conclude that the ALJ carefully reviewed the medical evidence and

adequately explained, upon consideration of Kanakis’s testimony and the reports of

multiple physicians, why Kanakis’s statements regarding the intensity of his symptoms

and physical limitations were not entirely credible. For example, the ALJ pointed out

that Kanakis is able to manage his personal needs notwithstanding the alleged severity of

his condition, and that both Dr. Ferlan and Dr. Reidy reported that Kanakis maintained a

good range of motion, showed improvement with physical therapy, and was in “decent

overall” health. R. 19. Because substantial evidence supports the ALJ’s credibility

determination, we will not disturb it. See Schaudek, 181 F.3d at 433 (noting that an ALJ

is permitted to reject a claimant’s testimony as incredible, so long as the ALJ provides a

basis for doing so supported by the record).

                                               IV

       For the foregoing reasons, we will affirm the order of the District Court.



                                               7
