Gustavo I. Leyva v. Commissioner of Social Security

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3252
GUSTAVO I. LEYVA,
Appellant.
v.
COMMISSIONER OF SOCIAL SECURITY
On Appeal from the United States District Court
for the District of New Jersey
(D. C. No. 3-07-cv-00553)
District Judge: Hon. Joseph A. Greenaway
Submitted under Third Circuit LAR 34.1(a)
on May 13, 2009
Before: AMBRO and ROTH, Circuit Judges
and FISCHER*, District Judge
(Opinion filed May 11, 2010)
*Judge Nora Barry Fischer, United States District Judge for the Western District of
Pennsylvania, sitting by designation.

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O P I N I O N
ROTH, Circuit Judge:
Gustavo Leyva appeals from the District Court’s decision affirming the
Commissioner of Social Security’s denial of his application for disability insurance and
supplemental security income (SSI) benefits. Because the Commissioner’s decision to
deny benefits was based on substantial evidence, we will affirm.
As the facts are well known to the parties, we give only a brief description of the
relevant issues and procedural posture of the case.
Leyva applied for disability insurance and SSI benefits on February 4, 2004,
alleging disability since August 31, 2003, due to an ankle fracture, depression, lumbar
disc disease, a history of hypertension and tuberculosis, abdominal pain, and gallstones.
A hearing was held before an administrative law judge (ALJ) on November 17, 2005.
The ALJ found that residual pain from his ankle fracture constituted a “severe”
impairment but ultimately concluded that Leyva’s age, education, and vocationally
relevant experience, viewed in conjunction with the Medical-Vocational Guidelines in the
applicable regulations, directed a conclusion of “not disabled” for purposes of the Social
Security Act. The ALJ thus denied his application for benefits. Leyva sought review
from the Appeals Council, which denied his request. Thus, the ALJ’s decision is the
Commissioner’s final decision. Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001).

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On February 2, 2007, Leyva filed suit challenging the Commissioner’s ruling in
the United States District Court for the District of New Jersey. On May 28, 2008, the
District Court affirmed the Commissioner’s final ruling. Leyva filed a timely notice of
appeal on July 25, 2008.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and reviews the
Commissioner’s denial of benefits for substantial evidence. See McCrea v. Comm’r of
Soc. Sec., 370 F.3d 357, 359 (3d Cir. 2004). “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.’” Hartranft v. Apfel, 181 F.3d
358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)).
The regulations set forth a five-step process to determine if a claimant is disabled
and, thus, eligible for benefits. First, the ALJ must determine whether the claimant is
engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(i), (b). If so, the
claimant is not disabled. Id. The ALJ found that Leyva had not engaged in substantial
gainful activity since August 30, 2003.
At step two, the ALJ must determine whether the claimant suffers from a “severe”
impairment, defined as one which “significantly limits [a claimant’s] physical or mental
ability to do basic work activities.” Id. § 404.1520(a)(ii), (c). Only a severe impairment
can render a claimant “disabled.” Id. The ALJ found that the “residuals of [Leyva’s]

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The District Court viewed this statement as a typographical error based on a later1
statement by the ALJ that Leyva’s residuals of a fractured ankle were not severe. Both
the District Court and the ALJ, however, went on to analyze steps three through five for
Leyva’s ankle injury; we therefore interpret the ALJ’s decision to be that the ankle injury
was “severe” pursuant to step two.
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fractured ankle” constituted a “severe” impairment.1
At step three, the ALJ compares the medical evidence of the claimant’s “severe”
impairment(s) with those impairments presumed severe enough to preclude gainful work.
Id. § 404.1520(a)(iii). If the claimant’s impairment is similar to one listed, the claimant is
eligible for benefits. The ALJ found that Leyva’s ankle injury did not reach the level of
severity of those listed in the regulations.
Step four requires the ALJ to consider whether the claimant retains the residual
functional capacity to perform his past relevant work. Id. § 404.1520(a)(iv). If so, the
inquiry ends and the claimant is not eligible for benefits. The ALJ determined that Leyva
could not return to his previous employment as a maintenance worker.
Finally, at step five, the burden of production switches to the Commissioner, who
must demonstrate that there are other jobs existing in significant numbers in the national
economy that the claimant can perform. Id. §§ 404.1520(a)(iv), 404.1560(c)(1). The ALJ
looked to the medical vocational guidelines, which contain a series of rules that direct a
finding of “disabled” or “not disabled” depending on a claimant’s age, education,
vocational profile, and residual functional capacity. Based on those guidelines, the ALJ
determined that Leyva could perform “sedentary work,” defined as “work which is

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Leyva also takes issue with the fact that he was later deemed to be disabled as of2
March 31, 2006, one day after the ALJ issued his denial decision for the instant
application. Leyva’s subsequent disability application and adjudication, however, are not
part of the administrative record and are, thus, outside the scope of our review. See
Szubak v. Sec’y of Health & Human Servs., 745 F.2d 831, 833 (3d Cir. 1984) (new
evidence must relate to period for which benefits were denied).
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generally performed while sitting and never requires lifting in excess of 10 pounds.”
Leyva was, thus, deemed “not disabled” under the regulations.
Leyva contends that the Commissioner erred by (1) failing to find that his
depression and lumbar disc disease are severe impairments and (2) using the medical
vocational guidelines to deny disability at step five. We reject both contentions.2
With respect to Leyva’s depression, the ALJ’s findings were supported by
substantial evidence. Though Leyva was diagnosed with “major depressive disorder,” the
diagnosing doctor also observed that he did not have suicidal or homicidal tendencies and
was “able to follow instructions and the topic of conversation.” Doctors who had
previously examined Leyva indicated that his concentration was unimpaired, he was fully
oriented, and he presented as only mildly anxious. Leyva admitted that he took care of
his personal appearance and hygiene and that he was able to travel by public
transportation. In short, neither Leyva’s testimony nor his medical records undermine the
ALJ’s conclusion that Leyva’s depression was not severe.
Likewise, the only medical evidence of Leyva’s alleged back impairment was a CT
scan of his chest, dated August 2005, that indicates “possible” central disc herniation.

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Prior CT scans had not found any central disc herniation, and no follow-up examination
was conducted to confirm the “possible” diagnosis. Further, Leyva has never received
treatment for his alleged back impairment. Under these circumstances, the ALJ did not
err in concluding that Leyva did not have a severe back impairment.
Finally, our review of the record convinces us that the ALJ’s determination at step
five was not error, nor was the ALJ’s use of the medical-vocational guidelines improper
in this context.
For the foregoing reasons, we affirm the judgment of the District Court.

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