NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT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 Th ird Circuit LAR 34.1(a) March 20, 2017 Before: SHWARTZ, COWEN a nd FUENTES, Circuit Judges (Opinion filed: March 21, 2017)

___________

OPINION *

___________ PER CURIAM

* This disposition is not an op inion of the full Court and pu rsuant to I.O.P. 5.7 does not constitute binding precedent.2 Barbara Pennington appeals from the Dist rict Court’s order affirming the denial of Disability Insurance Benefits under the So cial Security Act by the Commissioner of Social Security (“the Commissioner”). We will affirm. I. Because we write solely for the benef it of the parties, we will only briefly summarize the essential facts. On Febr uary 8, 2006, Pennington file d an application for Disability Insurance Benefits under the Social Security Act, alleging that she was disabled beginning October 16, 1993, due to a back inju ry and allergies. Pennington’s application was denied. Pennington requested a hearing be fore an administrative law judge (“ALJ”). After a hearing at which Pennington proceed ed pro se, the ALJ denied Pennington’s application in a decision issued June 3, 2008, finding that Penningt on was not disabled. Pennington then obtained counsel, who reques ted 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 comp laint challenging the ALJ’s decision. After the Commissioner filed an answer, the pa rties 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 ju dgment 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 exhi bits not presented to the ALJ, the Appeals Council, or the District Court. Th e Commissioner opposes this motion.3 The District Court had subject matter juri sdiction 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 determin ing whether substantial evidence supports the ALJ’s finding that Pennington was not disabled. 42 U.S.C. §§ 405(g), 1383(c); Ruth erford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 20 05). “‘Substantial evidence’ has been defined as ‘more than a mere scintilla. It mean s such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Sm ith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981) (quoting Richardson v. Pe rales, 402 U.S. 389, 401 (1 971)). We exercise plenary review over the District Court’s determina tion 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. Ap fel, 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 th e ALJ, a district court has the option to remand the case to the Commissioner for consideration of that evid ence under the sixth sentence of § 405(g), but only if the evidence is “new” and “mater ial,” 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 that4 proceeding.” Sullivan v. Finkelstein, 496 U.S. 617, 626 (1 990). “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 th rough August 10, 1 995, to the Appeals Council. The submissions presented, inte r 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 determ ined that the evidence was not material as Dr. Boor provided no explanati on for his assessment th at Pennington could not work. Finally, the District Court conc luded that Pennington knowingly waived her right to counsel and was able to submit numer ous records to the ALJ and present her case at the hearing. Thus, her pro se status di d 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 wa s under undue influence when she proceeded pro se at the hearing, and (3) the SSA and AL J failed to accept records. These arguments were not presented to the District Court an d 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 Distri ct Court Pennington argued only that the Appeals Council erred in failing to find that the later submitted evid ence from Dr. Boor5 was new and material evidence th at Pennington wa s under disability . It is clear that Pennington sought review on ly 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 revi ew, 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 in itially presented to the district court.” Wright v. Corning, 679 F.3d 101, 105 (3d Cir. 20 12) (quoting Lloyd v. HOVENSA , 369 F.3d 263, 272-73 (3d Cir. 2004)). However, even if the claim were not waiv ed, 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., 66 7 F.3d 356, 361 (3d Cir. 2011); Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). The ALJ considered the opinion of D r. 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 wa lk for more than one hour, or sit for more than one half hour in an ei ght-hour period, but gave them little weight. Tr. at 26. The6 ALJ found that these opinions were inconsistent with the clinical and objective findings on and prior to the date last insured. Id. at 27. Speci fically, the ALJ cited the MRI performed in May 1994, which revealed no eviden ce of disc herniation or significant spinal stenosis; the physical therapy evalua tion in May 1994, which showed a normal gait and only mild decrease in lowe r extremity strength; and a physical examination by Dr. Tomacruz in December 1999, in which Penningt on 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 di d not require surgical intervention and recommended only physical ther apy. Id. at 24. Moreov er, the ALJ noted that Dr. Ahmed’s examination determined that Pe nnington 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 complain ts. 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 resi dual 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 cons idered and afforded proper weight to the opinion eviden ce before him, and the AL J’s finding is supported by substantial evidence.7 IV. In conclusion, we will affi rm the judgment of the Dist rict Court. Pennington’s motions to submit additional documents a nd to expand the record are denied.