                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2004

Olivares v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3596




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                                                              NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                      No: 03-3596

                                 JUAN OLIVARES,

                                           Appellant

                                            v.

                     COMM ISSIONER OF SOCIAL SECURITY
                           ______________________

                   On Appeal from the United States District Court
                              for the District of New Jersey
                   District Judge: The Honorable William G. Bassler
                                 (D.C. No. 02-cv-00486)
                               _______________________

                     Submitted pursuant to Third Circuit LAR 34.1
                                   March 23, 2004

               Before: FUENTES, SMITH and GIBSON,* Circuit Judges

                           (Filed:    April 6, 2004       )

                                     _____________

                             OPINION OF THE COURT
                                  ____________

SMITH, Circuit Judge.

      Juan Olivares appeals from a judgment of the District Court affirming the



  *
  The Honorable John R. Gibson, Senior Circuit Judge for the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
Commissioner of Social Security’s final decision denying his application for disability

and supplemental security income benefits under the Social Security Act.      The District

Court had jurisdiction under 42 U.S.C. § 405(g). We exercise appellate jurisdiction under

28 U.S.C. § 1291. Our review “is identical to that of the District Court, namely to

determine whether there is substantial evidence to support the Commissioner’s decision.”

Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence is “more than

a mere scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)

(internal quotation marks and citation omitted).

       In determining whether a claimant is disabled, the Commissioner must follow the

familiar five step sequential analysis set forth in the regulations promulgated by the Social

Security Administration. See 20 C.F.R. §§ 404.1520, 416.920. Olivares contends that the

Administrative Law Judge (“ALJ”) erred at the third and fifth step of this analysis. With

respect to step three, Olivares argues that the ALJ failed to adequately explain why

Olivares’s medical condition did not satisfy any of the impairments listed in Appendix 1

to the Social Security regulations, thereby establishing that he was disabled per se. See

20 C.F.R. § 404.1520(d). Olivares also takes issue with the ALJ’s determination at step

five that Olivares had the residual functional capacity to perform the full range of

sedentary work. This determination, according to Olivares, is not supported by

substantial evidence, because the ALJ failed to properly consider the judgment of his



                                             2
medical expert, Dr. Mylod, an orthopedic surgeon.

       Olivares’s argument with respect to step three of the sequential analysis is

frivolous. Dr. Mylod, plaintiff’s own medical expert, testified before the ALJ that

Olivares’s medical condition did not meet or equal the listing for either spinal disorders or

several other musculoskeletal maladies. This aspect of Dr. Mylod’s testimony was

specifically cited by the ALJ. Accordingly, there is substantial evidence to support the

ALJ’s determination at step three that Olivares did not have a listed impairment.

       As to Olivares’s contention that the ALJ failed to accord sufficient weight to the

opinion of Dr. Mylod, we find it unpersuasive. Dr. M ylod, as the ALJ noted in his

decision, testified at the June 1999 hearing regarding Olivares’s residual functional

capacity, explaining that Olivares had initially injured his back in the latter part of 1997.

Diagnostic studies revealed a herniated lumbar disc and Olivares was treated on two

occasions with an epidural injection containing a steroid. As a consequence of the steroid

medication, Olivares developed a rare pulmonary fungal infection called aspergillosis.

Although treatment during the first few months of 1998 with the medication

Amphotericin B was successful, Olivares developed joint pains. Dr. Mylod

acknowledged that Olivares’s physicians “were puzzled as to why he had persistent joint

pains” once the course of Amphotericin was completed. Subsequent diagnostic testing

did not reveal any specific medical condition causing the joint pain. Indeed, a bone scan

conducted in July 1998 was unremarkable.



                                              3
       After reviewing Olivares’s medical status, Dr. Mylod opined that Olivares was

limited to standing for “maybe two out of eight hours” and no more than twenty to thirty

minutes at a time. Walking was also limited, because of knee and hip pain, to one to

one-and-a-half blocks. Sitting was restricted, in Dr. Mylod’s opinion, to no more than

four hours in an eight hour day and no more than thirty minutes at a time. A five pound

weight limit was warranted for lifting and carrying.

       The ALJ accorded little weight to Dr. Mylod’s restrictive assessment of Olivares’s

residual functional capacity. He noted that Dr. Mylod was frequently used by claimants

in disability cases and was being paid to testify in that proceeding, thereby creating an

inherent bias. Because Dr. Mylod had neither treated nor examined Olivares, the ALJ

explained that the weight to be accorded Dr. Mylod’s opinion was dependent on the

amount of supporting evidence in the record. In the ALJ’s view, the record did not

support Dr. Mylod’s opinion which was “based to a significant degree on the ongoing

subjective complaints of joint pain.”

       We find no error by the ALJ in discounting Dr. Mylod’s opinion. It was based

predominantly on Olivares’s subjective complaints of persistent joint pain. The record

fails to demonstrate that Olivares’s pain limited him as severely as Dr. Mylod opined. As

the ALJ noted, Dr. Lichtbroun, Olivares’s treating physician, documented in August 1998

that despite joint pains, Olivares had full range of motion and was capable of compressing

twenty pounds. Notably, the reports of several consultative physicians who examined



                                              4
Olivares in August, September and December of 1998 documented complaints of only

back pain. In the absence of medical evidence to support Olivares’s contention that he

continued to suffer from debilitating joint pains in the latter part of 1998, it was not

improper for the ALJ to discount Dr. Mylod’s subsequent opinion that Olivares’s physical

capabilities were severely restricted.

         Olivares asserts that the ALJ rejected Dr. Mylod’s opinion simply because Dr.

Mylod was a paid medical expert. Yet that assertion simply ignores the medical evidence

of record. Although the ALJ’s observations that Dr. Mylod was frequently used by

claimants and that he was being paid to testify in this proceeding may have been an

inartful way of explaining one of the bases for discounting Dr. M ylod’s opinion, they did

provide an appropriate basis for classifying Dr. Mylod’s opinion as that of a “non-

examining source” under 20 C.F.R. § 404.1527.

         In sum, we conclude that there was substantial evidence to support the ALJ’s

decision that Olivares was not disabled.1 We will affirm the judgment of the District

Court.

                       ______________________________________



  1
   As support for his contention that the ALJ erred, Olivares submits that he subsequently
applied for disability benefits and was found to be disabled. We made explicit in Jones v.
Sullivan, 954 F.2d 125, 128 (3d Cir. 1991), that evidence which was not before the ALJ
“cannot be used to argue the ALJ’s decision was not supported by substantial evidence.”
Accordingly, the fact that Olivares subsequently received disability benefits is of no
consequence to our analysis of whether the ALJ erred in the case sub judice. See also
Matthews v. Apfel, 239 F.3d 589, 594-95 (3d Cir. 2001).

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