                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-6-2002

D'Aurelio v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3346




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"D'Aurelio v. Comm Social Security" (2002). 2002 Decisions. Paper 327.
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                                                     NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                            No. 01-3346
                            ___________
                        EDWARD E. D’AURELIO,
                                               Appellant

                                 v.

            ACTING COMMISSIONER OF SOCIAL SECURITY,
                      *LARRY G. MASSANARI

                 *(Pursuant to F.R.A.P. 43(c))
                __________________________________

         On Appeal from the United States District Court
             for the Western District of Pennsylvania
                D.C. Civil Action No. 00-cv-01120
                   (Honorable Gustave Diamond)
                       ___________________


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                          March 4, 2002

           Before:   SCIRICA and ROSENN, Circuit Judges,
                     and WARD, District Judge*

                      (Filed   June 6, 2002)

                          __________________

                        OPINION OF THE COURT
                         __________________




     *The Honorable Robert J. Ward , United States District Judge for the Southern
District of New York, sitting by designation.




SCIRICA, Circuit Judge.

     This is an appeal of a denial of social security benefits. We will affirm.
                               I.
     Edward D’Aurelio was fifty-four years old when the ALJ denied his application
for disability benefits. He graduated college and earned a Master’s Degree in Music
Education. After four years of military service and twenty-seven and a half years as a
high school music teacher and band director, D’Aurelio qualified for early retirement,
which he took in February 1997. He applied for disability benefits on May 21, 1997,
alleging an onset date of February 12, 1996.
     D’Aurelio suffers from chest pain, kidney stones, sciatic nerve and a stress related
adjustment disorder with anxiety. In February 1996, he was treated by Dr. James Joye
and diagnosed with a normal heart rhythm. Dr. Joye referred D’Aurelio to cardiologist
Dr. Edward McDowell for a "workup of noncardiac causes of chest pain." Dr.
McDowell administered an electrocardiogram (EKG), which showed no significant
changes. Without giving a basis for his opinion, Dr. McDowell determined D’Aurelio
was unable to return to his work as a high school teacher.
     In February 1997, Dr. Rogelio Vega removed a kidney stone from D’Aurelio. Dr.
Vega and Dr. Edward Tsai examined D’Aurelio and made a diagnosis of labile angina
pectoris. But D’Aurelio did not note chest pain at that time and a second EKG showed
no changes. In July 1997, D’Aurelio saw Dr. Brent Ednie, who diagnosed him with
coronary artery disease and opined he would be unable to resume his work at the high
school because of stress. In August 1997, D’Aurelio saw psychologist Vito
Dongiovanni. Dongiovanni determined D’Aurelio had an adjustment disorder with
anxiety, but gave a prognosis of "good." Dongiovanni stated: "D’Aurelio’s mental
functioning seems very good particularly for social judgment . . . ."
     Two doctors performed functional capacity assessments. In September 1997, Dr.
Timothy Finch determined D’Aurelio could do medium work with no limitations. In
February 1998, Dr. Theordore Waldron concluded he could perform light work with
certain environmental limitations.
     Dr. John Moossy, a neurologist, found after examination that D’Aurelio reported
no chest pain, his coronary artery disease was stable and his EKG was normal. Dr.
Moossy referred D’Aurelio to Dr. Andrew Cash for an L2 complete laminectomy, an L3
partial laminectomy and an L2-L3 discectomy. The operation took place in November
1997 and was uneventful. In February 1998, Dr. Moossy allowed D’Aurelio to gradually
return to participating in his bowling league.
     In December 1997, Dr. Durre Ahmed, an internist, noted D’Aurelio could ride
thirteen miles on a stationary bike in fifteen minutes. But he noted D’Aurelio had
difficulty walking on his toe and heel and had restricted flexion in his spine. Dr. Ahmed
concluded D’Aurelio was limited to lifting ten pounds, walking less than two hours, had
to alternate standing and sitting every hour, could do some pushing with his legs, and
was unlimited in his upper extremities.
     The Administrative Law Judge posed a question to a vocational expert: whether
there were jobs that someone with D’Aurelio’s age, education and work background,
who is limited to light exertional work and should avoid extreme temperatures, excessive
wetness or humidity, with limited exposure to pulmonary irritants, could hold. The
vocational expert opined that 509,775 such unskilled jobs and 11,250 such jobs using
D’Aurelio’s transferable skills exist nationally. Therefore the ALJ determined D’Aurelio
is not disabled. The Appeals Council denied D’Aurelio’s request for review. On August
6, 2001, the District Court affirmed the ALJ’s denial of disability. D’Aurelio now
appeals.
                              II.
     We review an ALJ’s denial of disability on a substantial evidence basis. 42
U.S.C. 405(g) (1991); Burnett v. Comm’r of the Soc. Sec. Admin., 220 F.3d 112, 118
(3d Cir. 2000) (citations omitted). The ALJ’s factual findings are conclusive if
supported by substantial evidence in the record. Substantial evidence is "more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate." Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (citations omitted).
     D’Aurelio claims the ALJ did not credit his complaints of pain. But the ALJ
found that despite pain, D’Aurelio could still engage in substantial gainful activity. This
conclusion is properly within the sound discretion of the ALJ. 20 C.F.R. 404.1529(a)
(1991) ("We will then determine the extent to which your alleged functional limitations
and restrictions due to pain or other symptoms can reasonably be accepted as consistent
with the medical signs and laboratory findings and other evidence to decide how your
symptoms affect your ability to work."). Substantial evidence supports the ALJ’s
determination here.
     D’Aurelio also claims the finding that he could do light work is not supported by
substantial evidence, because Drs. Ahmed and McDowell opined he was limited to
sedentary work. But the treating doctors’ unsupported assessments of a claimant’s
functional capacity are not necessarily controlling. 20 C.F.R. 404.1527(e)(1) (1991).
The ALJ properly weighed the evidence in the record as a whole. Substantial evidence
supports the ALJ’s determination that D’Aurelio could do light work with limitations.
     Finally, D’Aurelio claims the ALJ’s determination that other suitable jobs existed
in the national economy was not supported by substantial evidence, citing the allegedly
low number of jobs where he could use his transferable skills. But an applicant will be
found not disabled, if sufficient jobs exist that he can do. 20 C.F.R. 404.1520(f)(1)
(1985). The vocational expert testified there were over five hundred thousand unskilled
jobs that D’Aurelio could perform.
     Substantial evidence supports the ALJ’s denial of disability under 20 C.F.R.
404.1520(f).
                               III.
     For the foregoing reasons, we will affirm the judgment of the District Court.

TO THE CLERK:

          Please file the foregoing opinion.




                                           /s/ Anthony J. Scirica
                                         Circuit Judge
