NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-1484

_____________

LORRAINE DELLAPOLLA, 

 Appellant

v.

COMMISSIONER OF SOCIAL SECURITY

_____________

On appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 2-14-cv-1959)

District Judge: Honorable Legrome Davis

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

November 16, 2016

Before: AMBRO, CHAGARES, and FUENTES, Circuit Judges.

(Filed: December 1, 2016)

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OPINION*

____________

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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CHAGARES, Circuit Judge.

Lorraine Dellapolla appeals from the District Court’s decision denying in part her 

application for supplemental security benefits under Title XVI of the Social Security Act, 

42 U.S.C. §§ 1382-1383f. We will affirm the District Court’s judgment.

I.

Because we write solely for the benefit of the parties, we will only briefly 

summarize the essential facts. 

On December 31, 2006, Dellapolla filed an application for supplemental security 

benefits, alleging that her disability onset date was August 15, 1995. After a hearing, the 

Administrative Law Judge (“ALJ”) denied the application.

1

 The Appeals Council (“AC”) 

declined to review this ALJ decision and Dellapolla sought relief in federal court. On 

November 7, 2012, the District Court remanded to the AC to make further findings in a 

number of areas. The AC decided to remand to the ALJ; it also consolidated this 

application with another that Dellapolla filed on January 10, 2013. 

On July 11, 2013, the ALJ held another hearing. On September 20, 2013, the ALJ 

rendered a partially favorable decision for Dellapolla. See Administrative Record (“AR”)

538. Specifically, the ALJ found that Dellapolla suffered from severe impairments of hip 

bursitis, degenerative joint disease of the hip, lumbar degenerative disc disease, 

 

1

In an earlier decision, the ALJ had determined that Dellapolla was not disabled because 

she had residual functioning capacity for a limited range of sedentary work. Dellapolla 

requested review by the Appeals Council (“AC”), which remanded to the ALJ. The ALJ 

then found Dellapolla was not disabled and that she had a residual functioning capacity 

for light work.
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osteoporosis, carpal tunnel syndrome, history of right wrist tendinitis, status-post De 

Quervain’s release, status-post trochanteric bursa excision, and peripheral vascular 

disease. However, the impairments did not meet or medically equal the severity of an 

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ determined 

that Dellapolla had the residual functional capacity (“RFC”) to perform sedentary work 

as defined in 20 C.F.R. § 416.967(a) with the following limitations: lifting or carrying no 

more than 10 pounds occasionally; standing or walking for no more than 2 hours; sitting

for no more than 6 hours with the ability to sit or stand at will; no more than occasional 

climbing, balancing, stooping, kneeling, crouching, or crawling; and no use of her upper 

extremities, reaching overhead with her right, dominant upper extremity, or pushing or 

pulling with her lower extremities. Next, the ALJ found that Dellapolla was disabled as 

of June 22, 2012. The ALJ concluded that prior to that date, Dellapolla was not disabled 

because she had the RFC to perform sedentary work with the above-listed limitations, 

and because there existed work in significant numbers in the national economy in which 

Dellapolla could participate. After June 22, 2012, Dellapolla became a person “closely 

approaching advanced age (age 50–54),” 20 C.F.R. § 416.963, and there were no jobs in 

significant numbers in the national economy that she could perform. 

Dellapolla again brought suit in federal court. On January 8, 2016, the District 

Court entered an order adopting the Magistrate Judge’s June 14, 2016 Report and 

Recommendation (“R&R”) affirming the ALJ’s decision. Dellapolla timely appealed.
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II.

A. 

The District Court had subject matter jurisdiction pursuant to 42 U.S.C. § 405(g). 

We have jurisdiction to review the District Court’s decision under 28 U.S.C. § 1291. Our 

review is limited to determining whether substantial evidence supports the ALJ’s finding 

that Dellapolla was not disabled prior to June 22, 2012. 42 U.S.C. §§ 405(g), 1383(c); 

Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). “‘Substantial evidence’ has 

been defined as ‘more than a mere scintilla. It means such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion.’” Smith v. Califano, 

637 F.2d 968, 970 (3d Cir.1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S. 

Ct. 1420, 28 L.Ed.2d 842 (1971)). We review applications of legal principles de novo. 

Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995).

B. 

Under the Social Security Act, the Commissioner may pay social security benefits 

to disabled persons, defined as one whose “physical or mental impairment or 

impairments are of such severity that [s]he is not only unable to do his previous work but 

cannot, considering [her] age, education, and work experience, engage in any other kind 

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

423(d)(2)(A). The Commissioner uses a five-step process when making disability 

determinations under 20 C.F.R. §§ 404.1520, 416.920:

First, the Commissioner considers whether the claimant is currently

engaged in substantial gainful activity. If he is not, then the Commissioner 
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considers in the second step whether the claimant has a “severe 

impairment” that significantly limits his physical or mental ability to 

perform basic work activities. If the claimant suffers a severe impairment, 

the third inquiry is whether, based on the medical evidence, the impairment 

meets the criteria of an impairment listed in the “listing of impairments,” 20 

C.F.R. pt. 404, subpt. P, app. 1 (1999), which result in a presumption of 

disability, or whether the claimant retains the capacity to work. If the 

impairment does not meet the criteria for a listed impairment, then the 

Commissioner assesses in the fourth step whether, despite the severe 

impairment, the claimant has the residual functional capacity to perform his 

past work. If the claimant cannot perform his past work, then the final step 

is to determine whether there is other work in the national economy that the 

claimant can perform. The claimant bears the burden of proof for steps one, 

two, and four of this test. The Commissioner bears the burden of proof for 

the last step. 

Sykes v. Apfel, 228 F.3d 259, 262–63 (3d Cir. 2000) (citing Bowen v. Yuckert, 482 U.S. 

137, 146 n.5 (1987)).

III.

A.

Dellapolla raises several issues on appeal, most of which were not raised at the 

District Court level. “It is the general rule that a federal appellate court does not consider 

an issue not passed upon below.” Selected Risks Ins. Co. v. Bruno, 718 F.2d 67, 69 (3d 

Cir. 1983) (citing Singleton v. Wulff, 428 U.S. 106, 120 (1976)); see also Krysztoforski, 

55 F.3d at 860 (“[W]e decline to entertain [appellant’s] argument since it was not raised

before the ALJ or the district court.”). Although this rule is discretionary rather than 

jurisdictional, no exceptional circumstances arise that suggest we should entertain issues 

not raised to the District Court.

Dellapolla brought only two challenges to the ALJ’s decision before the District 

Court: 1) that the ALJ erroneously assessed her RFC by not giving controlling weight to 
6

the opinion of Dr. Kain, and 2) that the ALJ improperly relied on the vocational expert’s 

testimony regarding the number of available jobs that Dellapolla could perform. See

Dellapolla Br. 64-76 (attaching copy of the Magistrate Judge’s R&R, which was adopted 

by the District Court (hereinafter “D. Ct. Op.”)); see also Supp. App. 7-8. On appeal, 

Dellapolla not only challenges the ALJ’s treatment of Dr. Kain’s opinion—and has 

dropped the challenge regarding the vocational expert’s testimony—but also raises a 

number of new challenges as to the ALJ’s consideration of the opinions of Doctors 

Gagliardo, Zurbach,2and Bongiovanni and as to the ALJ’s reading of medical records. 

We will not entertain these arguments not previously made.

B.

In her September 20, 2013 opinion, the ALJ discussed Dr. Kain’s medical 

assessment, ultimately affording limited weight to his opinion. AR 546. Dellapolla 

argues that the ALJ should have afforded Dr. Kain’s opinion more weight because of his 

expertise and extensive treatment history with Dellapolla. We disagree.

As the District Court explained, “the ALJ undertook an exhaustive longitudinal 

discussion of [Dellapolla’s] conditions and treatment . . . and credited Dr. Kain’s 

opinions regarding [Dellapolla’s] limitations in her ability to stand/walk and lift/carry.” 

Dellapolla Br. 69 (D. Ct. Op. 26). The ALJ evaluated Dr. Kain’s assessment of 

Dellapolla’s RFC and accorded limited weight to his testimony, in particular the portions

consistent with the record. AR 546. Dr. Kain opined that Dellapolla could stand or walk 

 

2 Although Dellapolla mentions Dr. Zurbach’s assessment in her District Court briefing, 

that reference was only as to using Dr. Zurbach’s opinion to support Dr. Kain’s opinion, 

not whether Dr. Zurbach’s opinion itself should have been afforded controlling weight.
7

for a total of less than two hours, and lift and carry no more than 10 pounds. AR 340. 

Both limitations were included in the ALJ’s RFC limitation assessment. AR 543. Dr. 

Kain offered no assessment as to how long Dellapolla could sit over the course of an 

eight-hour workday; the ALJ therefore could not base her determination of the sitting 

limitation on Dr. Kain’s opinion. 

Dellapolla also contends that the ALJ erred by failing to mention Dr. Kain’s 

specialization, his number of years in treating Dellapolla, and one line in his RFC 

questionnaire in which he indicated that Dellapolla’s pain was severe enough to interfere 

frequently with her attention and concentration. We disagree. First, “we do not expect 

the ALJ to make reference to every relevant treatment note in a case.” Fargnoli v. 

Massanari, 247 F.3d 34, 42 (3d Cir. 2001). The ALJ did give Dr. Kain’s assessment 

weight when supported by the record, and the cherry-picking of unmentioned details 

from a voluminous record does not a viable claim make. Second, as the District Court 

noted, Dr. Kain’s opinion regarding interference with attention and concentration was 

contradicted by Dellapolla’s own statement that her pain has not affected her ability to 

think and concentrate. AR 226. As the ALJ noted in her thorough discussion of 

Dellapolla’s RFC, the medical record shows that “treatment the claimant has received has 

been effective in alleviating her symptoms” and “the evidence fails to substantiate the 

claimant’s allegations of debilitating limitations.” AR 548. The ALJ’s conclusion as to 

Dellapolla’s RFC was supported by an extensive analysis of the bases for the 

determination, including evaluations of the medical evidence and credibility 
8

determinations as to Dellapolla’s testimony.3 Accordingly, the ALJ’s finding that 

Dellapolla was not disabled prior to June 22, 2012 was supported by substantial evidence.

IV.

For the foregoing reasons, we will affirm the District Court’s judgment.

 

3 We have considered Dellapolla’s other arguments and deem them to be without merit.