Musico v. Comm Social Security

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-23-2006
Musico v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3898
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3898
________________
JAMES W. MUSICO,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 02-cv-05122 )
District Judge: Honorable William H. Walls
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
May 22, 2006
Before: SCIRICA, CHIEF JUDGE, BARRY AND COWEN, CIRCUIT JUDGES
(Filed: May 23, 2006 )
_______________________
OPINION
_______________________
PER CURIAM
On September 14, 1998, James Musico applied for Social Security disability
insurance benefits under the Social Security Act, claiming that he was disabled due to,
among other things, six-vessel bypass heart surgery in 1993, hypertension, pain, and
depression. He was insured for disability benefits only through June 30, 1999. Musico
requested a hearing on his application by an Administrative Law Judge (“ALJ”). The
hearing was held on August 13, 1999. By decision dated November 17, 2000, the ALJ
determined that Musico was not disabled within the meaning of the Act and, therefore,
denied the application for benefits. The ALJ’s decision became the final decision of the
Commissioner of Social Security (“Commissioner”) when the Appeals Council denied
Musico’s request for review. See 20 C.F.R. § 416.1481.
Musico, represented by counsel, filed a civil action in the United States District
Court for the District of New Jersey, seeking judicial review of the Commissioner’s final
decision. Upon consideration of the administrative record and the parties’ briefs, the
District Court affirmed the Commissioner’s final decision. Musico appeals pro se.
Our review of the Commissioner's final decision is based upon the certified
transcript of the record of proceedings. 42 U.S.C. § 405(g). We will uphold the decision
if it is supported by substantial evidence in the record, even if we would have decided the
factual inquiry differently. See Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
Substantial evidence “does not mean a large or considerable amount of evidence, but
rather such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id., citing Pierce v. Underwood, 487 U.S. 552 (1988).
The ALJ evaluated Musico’s application for benefits under a five-step sequential
evaluation. 20 C.F.R. § 404.1520; Schaudeck v. Commissioner of Social Security
Administration, 181 F.3d 429, 431-32 (3d Cir. 1999). Within that process, the ALJ found
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that the medical evidence established that Musico has the following severe impairments
that limit his vocational activities: coronary artery disease, hypertension, and multiple
joint pain. The ALJ found that Musico’s depression is not severe. The ALJ then
considered the objective medical evidence, and the medical opinions of Musico’s treating
physicians. The ALJ also considered Musico’s testimony regarding his limitations and
abilities regarding household activities. Based upon the findings of several doctors
(including Dr. Miller, Dr. Fisher, and Dr. Knep), and the objective medical reports
documenting Musico’s condition (including medical treatment records, X-rays, laboratory
studies, arterial dopplers, and stress tests), the ALJ ultimately determined that Musico
cannot perform his past relevant work as a plumber but retains the residual functional
capacity to perform light or sedentary work. Applying the Medical-Vocational
Guidelines, the ALJ made a finding of “not disabled” and denied Musico’s claim for
benefits.
Having reviewed the administrative record, we agree with the District Court’s
conclusion that the ALJ’s decision is supported by substantial evidence. We note that the
possibility of drawing two inconsistent conclusions from the evidence contained in the
administrative record does not prevent an agency’s finding from being supported by
substantial evidence. See Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620
(1966).
Musico’s primary contention on appeal is that certain evidence favorable to him
went ignored. For example, regarding his depression and anxiety, he notes that he
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testified at the hearing that Dr. Miller had prescribed Xanax for him. Yet the record also
contains Dr. Miller’s statement that Musico has no psychiatric history, and no evidence of
psychiatric symptoms, depression, or cognitive impairments. Musico points to additional
evidence of his treatment for anxiety and depression that he submitted to the Appeals
Council, but in so doing, he refers to matters that post-date the ALJ’s decision and that
were not part of the record before the ALJ in this case. We cannot consider these matters
as part of our review. Jones v. Sullivan, 954 F.2d 125, 128 (3d Cir. 1991) (evidence not
presented to the ALJ “cannot be used to argue that the ALJ’s decision was not supported
by substantial evidence”). Further, Musico would not be entitled to a remand to the
agency for consideration of his additional evidence because it does not relate to his
condition during the time period at issue in this case. See Szubak v. Secretary of Health
and Human Servs., 745 F.2d 831, 833 (3d Cir. 1984) (new evidence must relate to the
period for which benefits were denied and not relate to a later-acquired disability or a
later deterioration of a condition previously found to be non-disabling). Musico also
relies on Dr. Pumill’s opinion that he was permanently disabled. However, Dr. Pumill’s
opinion was based upon an examination in 2000, after Musico’s last insured date. In
addition, Dr. Pumill noted that a stress test performed in May 1999 (one month before
Musico’s insured status expired) was reportedly unremarkable.
Musico also contends that the Social Security Administration did not meet its
burden to show that there are jobs existing in significant numbers in the national economy
that he can perform, noting that no vocational expert testified at the hearing. As
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explained by the ALJ, application of Medical-Vocational Rule 202.21directs a conclusion
of “not disabled” given Musico’s residual functional capacity for light work as a result of
severe medically determinable impairments, his status as a “younger individual” under
20 C.F.R. § 404.1563, and his high school education level and no transferable skills. See
20 C.F.R. § 404.1569. His vocational factors coincide with the criteria of the Medical-
Vocational rule, so the existence of occupations in the national economy is met by
administrative notice. See 20 C.F.R. Part 404, Subpart P., Appendix 2, § 200.00(b).
Finally, Musico appears to argue that age should not be the ultimate, controlling factor in
denying him benefits. As reflected in the ALJ’s decision, Musico’s age was but one of
the several factors considered when applying the Medical-Vocational rules.
We have considered all of Musico’s arguments on appeal and conclude that they
are unavailing. We will affirm the order of the District Court.
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