NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 16-1141 

___________ 

BARBARA J. PENNINGTON, 

 Appellant 

v. 

COMMISSIONER OF SOCIAL SECURITY 

____________________________________ 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Civil Action No. 2:14-cv-00834) 

District Judge: Honorable Gustave Diamond 

____________________________________ 

Submitted Pursuant to Third Circuit LAR 34.1(a) 

March 20, 2017 

Before: SHWARTZ, COWEN and FUENTES, Circuit Judges 

(Opinion filed: March 21, 2017) 

___________ 

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. 
2 

 Barbara Pennington appeals from the District Court’s order affirming the denial 

of Disability Insurance Benefits under the Social Security Act by the Commissioner of 

Social Security (“the Commissioner”). We will affirm. 

I. 

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

the essential facts. On February 8, 2006, Pennington filed an application for Disability 

Insurance Benefits under the Social Security Act, alleging that she was disabled 

beginning October 16, 1993, due to a back injury and allergies. Pennington’s application 

was denied. Pennington requested a hearing before an administrative law judge (“ALJ”). 

After a hearing at which Pennington proceeded pro se, the ALJ denied Pennington’s 

application in a decision issued June 3, 2008, finding that Pennington was not disabled. 

Pennington then obtained counsel, who requested that the Appeals Council review the 

ALJ’s decision; counsel submitted exhibits to the Appeals Council which were not before 

the ALJ. The Appeals Counsel denied review. 

 Pennington then filed a counseled complaint challenging the ALJ’s decision. 

After the Commissioner filed an answer, the parties filed motions for summary judgment. 

The District Court denied Pennington’s motion for summary judgment, granted the 

Commissioner’s motion for summary judgment, and entered judgment in favor of the 

Commissioner. Pennington appeals.1

 

II. 

 

1

 Pennington has filed a motion to submit additional documents and a supplemental 

motion to expand the record to include exhibits not presented to the ALJ, the Appeals 

Council, or the District Court. The Commissioner opposes this motion. 
3 

 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 Pennington was not disabled. 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 (1971)). We exercise plenary 

review over the District Court’s determination of legal issues, including whether it was 

proper for the District Court to decline to remand the matter to the ALJ for consideration 

of new evidence. See Matthews v. Apfel, 239 F.3d 589, 591 (3d Cir. 2001). 

III. 

 The District Court properly held that it could not consider any evidence that was 

not part of the record considered by the ALJ. See Matthews, 239 F.3d at 594 (citing 

Jones v. Sullivan, 954 F.2d 125, 128 (3d Cir. 1991)). When a claimant seeks to rely on 

evidence that was not before the ALJ, a district court has the option to remand the case to 

the Commissioner for consideration of that evidence under the sixth sentence of § 405(g), 

but only if the evidence is “new” and “material,” and only if the claimant shows good 

cause why it was not presented to the ALJ. 239 F.3d at 592, 594. The burden was on 

Pennington to make this showing. Id. at 595. “[S]ixth-sentence remand is appropriate 

when the district court learns of evidence not in existence or available to the claimant at 

the time of the administrative proceeding that might have changed the outcome of that 
4 

proceeding.” Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). “The fact that a claimant 

is unrepresented by counsel and has knowingly waived this right is not alone sufficient 

for remand.” Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980). 

 Pennington submitted a statement from Dr. John Boor, dated August 4, 1995, and 

insurance forms dated October 14, 1994 through August 10, 1995, to the Appeals 

Council. The submissions presented, inter alia, Dr. Boor’s detailing of Pennington’s 

medical condition and a checked box indicating that Pennington could not work and that 

release to full time duty was indeterminate. The District Court determined that the 

evidence presented from Dr. Boor was not new as Dr. Boor made his assessment 13 years 

prior to the ALJ’s decision. The District Court also determined that the evidence was not 

material as Dr. Boor provided no explanation for his assessment that Pennington could 

not work. Finally, the District Court concluded that Pennington knowingly waived her 

right to counsel and was able to submit numerous records to the ALJ and present her case 

at the hearing. Thus, her pro se status did not constitute good cause. We agree. 

 Pennington raises the following claims for the first time on appeal: (1) the ALJ 

violated her due process rights, (2) she was under undue influence when she proceeded 

pro se at the hearing, and (3) the SSA and ALJ failed to accept records. These arguments 

were not presented to the District Court and are therefore waived. See C.H. v. Cape 

Henlopen Sch. Dist., 606 F.3d 59, 73 (3d Cir. 2010). 

 Additionally, Pennington’s claim that the ALJ improperly weighed opinion 

evidence is also waived. Before the District Court Pennington argued only that the 

Appeals Council erred in failing to find that the later submitted evidence from Dr. Boor 
5 

was new and material evidence that Pennington was under disability. It is clear that 

Pennington sought review only under sentence six of § 405(g), not under sentence four, 

and the District Court disposed of the claim as such. See Melkonyan v. Sullivan, 501 

U.S. 89, 98 (1991) (noting that the two types of remand provided for in § 405(g) are 

distinct). Thus, Pennington’s argument that the District Court erred in finding the ALJ’s 

decision was supported by substantial evidence is waived. Moreover, even if Pennington 

had sought sentence four review, Pennington did not present to the District Court the 

argument that the ALJ improperly weighed the opinion evidence, giving too much weight 

to Dr. Tomacruz and too little weight to Dr. Boor, Dr. Der Krikorian, and Dr. Ahmed. It 

is well-established that “it is inappropriate for an appellate court to consider a contention 

raised on appeal that was not initially presented to the district court.” Wright v. Corning, 

679 F.3d 101, 105 (3d Cir. 2012) (quoting Lloyd v. HOVENSA, 369 F.3d 263, 272-73 

(3d Cir. 2004)). 

 However, even if the claim were not waived, it is meritless. While an ALJ must 

generally give great weight to a claimant’s treating physician, an ALJ may discredit the 

treating physician’s opinion if other evidence contradicts it. 20 C.F.R. § 416.927(c); see 

also Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011); Morales v. 

Apfel, 225 F.3d 310, 317 (3d Cir. 2000). 

 The ALJ considered the opinion of Dr. Der Krikorian in July 1994, that 

Pennington should “stay away from work” and the opinion of Dr. Ahmed in November 

2006, that Pennington was unable to stand or walk for more than one hour, or sit for more 

than one half hour in an eight-hour period, but gave them little weight. Tr. at 26. The 
6 

ALJ found that these opinions were inconsistent with the clinical and objective findings 

on and prior to the date last insured. Id. at 27. Specifically, the ALJ cited the MRI 

performed in May 1994, which revealed no evidence of disc herniation or significant 

spinal stenosis; the physical therapy evaluation in May 1994, which showed a normal gait 

and only mild decrease in lower extremity strength; and a physical examination by Dr. 

Tomacruz in December 1999, in which Pennington exhibited a full range of motion in her 

extremities. Id. at 23-24. Additionally, the ALJ noted that, despite his opinion that 

Pennington should stay away from work for a period of time, Dr. Der Krikorian 

concluded that Pennington’s condition did not require surgical intervention and 

recommended only physical therapy. Id. at 24. Moreover, the ALJ noted that Dr. 

Ahmed’s examination determined that Pennington had a full range of motion in the 

lumbar spine, and that his opinion regarding her ability to walk and sit was largely based 

on Pennington’s subjective complaints. Id. at 27. Contrary to Pennington’s assertion, the 

ALJ did not accept Dr. Tomacruz’s opinion over the opinions of Dr. Der Krikorian and 

Dr. Ahmed on the issue of Pennington’s residual functional capacity, as Dr. Tomacruz 

did not opine on that issue. Finally, as discussed supra, Pennington did not submit Dr. 

Boor’s assessments to the ALJ. Accordingly, the ALJ considered and afforded proper 

weight to the opinion evidence before him, and the ALJ’s finding is supported by 

substantial evidence. 
7 

IV. 

 In conclusion, we will affirm the judgment of the District Court. Pennington’s 

motions to submit additional documents and to expand the record are denied.