Kenneth J. Muschar v. Comm Issioner of Social Security

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1675
KENNETH J. MUSCHAR,
Appellant
v.
COMM ISSIONER OF SOCIAL SECURITY
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 02-cv-00441)
District Judge: Honorable Arthur J. Schwab
Submitted Under Third Circuit LAR 34.1(a)
November 29, 2004
Before: RENDELL, ALDISERT and MAGILL*, Circuit Judges
(Filed: December 8, 2004)
OPINION OF THE COURT
* Honorable Frank J. Magill, Senior Circuit Judge for the Eighth Circuit, sitting by
designation.

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RENDELL, Circuit Judge.
Kenneth J. Muschar seeks review of the District Court’s determination that the
Administrative Law Judge’s (“ALJ”) ruling was supported by substantial evidence when
she found M uschar was not disabled in accordance with the Social Security Act.
Muschar’s employment history includes employment as an automotive parts worker, a
parking attendant, and a computer entry worker. He alleges that his disability began on
October 10, 1986, while working as an automotive parts worker. On that day, he
experienced a pulling sensation in his chest when lifting and carrying a piece of
equipment at work, which was later diagnosed as arising from chronic costochondritis –
an inflammation of the cartilage and rib of the chest.
I.
Our role as a reviewing court is limited to determining whether the
Commissioner’s decision is supported by substantial evidence which is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971). We are bound by the ALJ’s findings of
fact if they are supported by substantial evidence in the record. Plummer v. Apfel, 186
F.3d 422, 427 (3d Cir. 1999).
II.
The ALJ found the conclusion of Muschar’s treating physician, Dr. Mathew, that
Muschar was totally disabled, was not supported by clinical findings. Dr. Mathew’s own

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assessments of Muschar failed to reveal any signs of clinical atrophy or weakness. While
Muschar suffers from chronic pain with periodic exacerbations, his pain is manageable
when treated with Ibuprofen. Similarly, other evaluations provided by the State Agency
evaluators and the Harmarville Center (where Muschar sought treatment for his injuries)
concluded that Muschar could perform a wide range of sedentary jobs. This conclusion
was further supported by evidence of Muschar’s ongoing personal activities, which
included regularly carrying groceries, driving his wife to work every day, and doing a
range of household chores. The ALJ concluded that Muschar’s physical condition, while
severe, did not prevent M uschar from performing sedentary work.
In addition to his physical condition, Muschar complained of major depression
which further exacerbates his injury. Muschar has undergone psychiatric care for this
condition from Dr. Rye, a treating psychiatrist. Dr. Rye’s assessment that Muschar was
totally disabled, however, was based upon physical symptoms which were beyond the
scope of Muschar’s psychiatric treatment. While Dr. Rye concluded that Muschar had
some difficulties with social functioning, the ALJ concluded that Muschar was not
significantly impaired with respect to his ability to maintain the activities of daily living
and to relate to others on an effective basis. Due to Muschar’s difficulties, however, he
should avoid jobs involving detailed instructions, complex instructions, and extensive
dealings with the public.
The ALJ concluded that M uschar’s physical and mental condition prohibited him

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1 “Past relevant work” is defined under 20 C.F.R. § 404.1545 as work performed in
the past 15 years or 15 years prior to the date that the disability is established which lasted
long enough for the claimant to learn to do the job and meet the definition of substantial
gainful activity.
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from returning to the exertional and non-exertional duties of his former job, or any of his
“past relevant work.”1 The ALJ then placed the burden on the Social Security
Administration (“SSA”) to show that there are other jobs existing in significant numbers
in the national economy that Muschar could perform, consistent with his diminished
abilities, age, education, and work experience. Based on the testimony of a Vocational
Expert (“VE”), the ALJ concluded that Muschar was able to make a successful
adjustment to work that exists in significant numbers in the national economy, consistent
with his background and residual functioning capacity and, therefore, not disabled.
III.
The District Court affirmed the ALJ’s ruling, noting that the ALJ’s determination
regarding Muschar’s ability to perform a significant number of jobs available in the
national economy was supported by substantial evidence. The District Court addressed
each of Muschar’s contentions. They were: (1) the testimony of the VE proves Muschar
is totally disabled; (2) the ALJ did not give appropriate weight to Dr. Mathew’s
assessments of Muschar’s disability; (3) the ALJ erred in concluding there are sufficient
jobs in the national economy since the VE’s testimony preceded a downturn in the
national economy and there are a small number of jobs available at the local level; and

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(4) the affidavit submitted by Muschar in support of his motion for summary judgment
supports his claim of total disability.
The District Court considered all of these contentions and analyzed them
thoroughly in a twenty-page memorandum opinion and order. Muschar raises these same
issues on appeal. After a thorough review of the record, and giving due consideration to
the briefs filed in this appeal, we find that the District Court opinion sets forth the proper
reasoning with respect to each of these issues. Accordingly, we will not restate the
analysis here but, instead, incorporate by reference the memorandum opinion and order of
the District Court in this matter.
IV.
Accordingly, we will AFFIRM the District Court’s order.

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