                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                                NOT PRECEDENTIAL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

                                             2
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

                                              3
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

                                             4
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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