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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 14-4364

_____________ FRANCIS XAVIER MCGRAW, Appellant,

v. COMMISSIONER SOCIAL SECURITY

_____________ Appeal from the United States District Court for the District of New Jersey (No. 1:13-cv-04774) District Judge: Honorable Noel L. Hillman Submitted Pursuant to Th ird Circuit LAR 34.1(a) April 20, 2015 Before: FISHER, CHAGARES, and COWEN, Circuit Judges. (Filed: May 1, 2015)

____________ OPINION *

____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2 CHAGARES, Circuit Judge. Francis McGraw appeals the District Cour t’s decision affirming the denial of his application for Disability Insurance Benefits and Supplemental Security Income. For the following reasons, we will affirm the decision of the District Court.
I. We write solely for the parties and theref ore recite only the facts necessary to our disposition. McGraw suffers from ulcerative co litis and an unspecified anxiety disorder. One of his doctors, Richard Simon, complete d a medical statement that indicated that McGraw had pain present at a level thatwould prevent him from performing normal, full-time work activities two to four times per month, though Dr. Simon also noted that his evaluation was based on “history only.” The remainder of McGraw’s medical record was fairly sparse, notwithstanding his test imony that he suffered from ulcerative colitis from fifteen years. He submitted a short expe rt report from Dr. Joshua P. Desipio before his hearing and attempted to submit another report from a Dr. Kapoor after the hearing had ended. McGraw al so submitted a description of his daily activities, which included driving, attending to his personal needs, co mpleting daily household chores, and taking care of his handicapped father. He filed a claim for benefits on February 9, 2010, alleging a disability onset date of April 30, 2006, later amended to January 2, 2008. His claim was denied on September 29, 2010. After a reconsideration request was denied, he requested a hearing in front of an Administrative Law Judge (“ALJ”), who issu ed an unfavorable decision on all of his claims on April 30, 2012.3 He sought review of that decision in the District Court, which issued a final order affirming the ALJ’s decision on September 29, 2014. This ap peal followed.
II. The District Court had jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), and we have jurisdiction pursuant to 28 U.S.C. § 1291. On appeal from a district court’s decision affirming a Social Security Administration (“SSA”) denial of benefits, we have plenary revi ew of legal questions and we review the ALJ’s findings of fact for substantial evidence. See 42 U.S.C. § 405(g); Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999). The substantial evidence standard is deferential and considers whether there is su fficient “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) (q uotation marks omitted). It is “more than a mere scintilla but may be somewhat less than a prepondera nce of the evidence.” Id. (quotation marks omitted).
III. McGraw raises four objections to the District Court’s decision. First, he contends that the District Court erred in holding th at the Commissioner met its burden of proving that McGraw has residual functional capacity to perform work available in the national economy. See Wallace v. Sec’y of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (holding that the burden is on the SSA to show residual functional capacity). McGraw’s main argument is that the ALJ found that McGraw had the capacity to perform “medium” work but the Commissioner’s Vocational Expert only testified about4 the availability of sedentary jobs. Accordin g to McGraw, the ability to perform medium work does not encompass the ability to perform sedentar y work where his ability to perform medium work is circumscribed by non- exertional limitations, in this case a need to be close to a restroom. Our review is limited to whether the ALJ’s decision that McGraw had sufficient residual functional capacity to perform wo rk available in the national economy is supported by substantial evidence. We hold that it is. The ALJ found that McGraw had only mild restrictions in his activities of da ily living and some moderate difficulties in “concentration, persistence or pace.” A ppendix (“App.”) 30. These findings were consistent with the evidence presented, wh ich showed, among other things, that McGraw continued to work full time after the onset of his allegedly disablin g condition. The ALJ also specifically asked the Vocational Expert whether jobs were available in the national economy for someone with Mc Graw’s specific limitations a nd accepted the expert’s testimony that there were. The fact that the examples given were sedentary, rather than “medium,” is of no moment. See Zirnsak v. Colvin, 777 F.3d 607, 618 (3d Cir. 2014) (noting that jobs listed by vo cational experts are meant to be “representative examples— not an exhaustive list—of jobs that th e claimant was capable of performing”). McGraw’s second objection is that the AL J erred by failing to consider what he refers to as Dr. Simon’s “pr ogress notes.” The ALJ’s opinion indicates that he examined all the evidence presented by D r. Simon but ultimately gave his report little weight. See Fargnoli v. Massanari, 247 F.3d34, 42 (3d Cir. 2001) (holding that, while the ALJ must consider the medical records presented by the claimant, “we do no t expect the ALJ to5 make reference to every relevant treatmen t note”). McGraw’s contention amounts to little more than a disagreement with the ALJ’s conclusion, wh ich we find to be supported by substantial evidence. The ALJ consideredDr. Simon’s limited history of treating McGraw, his lack of specialization in the rele vant field, and the co ntrary conclusions of other medical experts. We cannot say that the ALJ’s decision to give Dr. Simon’s report relatively less weight was unsupported. Inst ead, his ultimate conclusion was supported by sufficient evidence “as a reasonable mind might accept to support a conclusion.” Rutherford, 399 F.3d at 552 (q uotation marks omitted). McGraw’s third objection is to the ALJ’ s failure to discuss a brief report from Dr. Joshua P. Desipio supporting a finding of disability. We ha ve vacated the decisions of ALJs where they failed to discuss significant, probative evidence. Se e, e.g., Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000 ). The report that the ALJ failed to cite here confirms McGraw’s ulcerat ive colitis diagnosis and states that he had two colonoscopies in the past. But the ALJ concluded that McGraw had ulcerative colitis and that he was severely impaired, so on this point Dr. Desipio’s report was cumulative. McGraw contends that the report rebuts th e argument that his condition was relatively well managed and support his contention that his symptoms had worsened in the months leading up to the report. However, Dr. Desipi o only saw McGraw once and his sole basis for concluding that McGraw’s symptoms ha d recently worsened was McGraw’s own statements. The ALJ had the opportunity to hear McGraw’s same statements about his symptoms and evaluate his cr edibility at the hearing, and the report therefore added nothing that the ALJ had not already taken into account. Thus, even assuming the failure6 to cite and discuss Dr. Desipio’s report was error, it was harmless. See Rutherford, 399 F.3d at 553 (holding error that would not affect the outcome of the proceeding was harmless). McGraw’s fourth objection is that the ALJ erred by failing to consider evidence that McGraw attempted to intr oduce after the hearing ended, namely, a prior report from a Dr. Kapoor from December 1998. He cites our decision in Wallace v. Bowen, 869 F.2d 187 (3d Cir. 1989), for the proposition that this was error. In Wallace, this Court considered whether the Government could in troduce post-hearing reports, and we held that it could not do so w ithout providing the claimant an opportun ity for crossexamination of any such report. Wallace, 869 F.2d at 191. We also noted that such posthearing evidence “is frequently proffered by the claimant in support of his or her claim.” Id. Nowhere in our opinion, however, did we suggest that th e ALJ is required to consider such evidence, and indeed, we emphasized that the ALJ had discretion as to whether to do so. Id. at 193 (noting that an opportuni ty for cross-examination must be provided “when an administrative law judge chooses to go outside the testimony adduced at the hearing” (emphasis added)). And, in a ny event, McGraw fails to explain how consideration of the late-filed evidence would have altered the ALJ’s decision, especially considering the doctor’s report he wished to have considered antedated the alleged onset of disability by almost ten years.
IV. For the foregoing reasons, we will a ffirm the District Court’s judgment.