Musico v. Comm Social Security , 183 F. App'x 162 ( 2006 )


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  •                                                                                                                            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    Precedential or Non-Precedential: Non-Precedential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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    Recommended Citation
    "Musico v. Comm Social Security" (2006). 2006 Decisions. Paper 1057.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1057
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    NOT PRECEDENTIAL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
    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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