FEELEY v. COMMISSIONER OF SOCIAL SECURITY

Filing 11

OPINION fld. Signed by Judge Kevin McNulty on 6/3/15. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 14-4970 (KM)

DOMINICK A. FEELEY,
Plaintiff,

OPINION

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Dominick Feeley’s application for Social Security disability benefits was
denied by the Administration. Feeley has appealed to this Court. He argues
that the AU did not properly consider his obesity and also did not consider the
combined effects of all of Feeley’s impairments. He adds that the AU

erred in

rejecting the opinion of Feeley’s treating physician without sufficient cause.
Feeley argues that the AU

erred in assessing Feeley’s residual functional

capacity. Finally, he contends that the AU

relied on an outdated publication

when he determined that there were a significant number of jobs in the
national economy that Feeley could perform. I find, however, that the AU
properly applied the governing legal standards and that his decision was
supported by substantial evidence. I will therefore affirm AU

Kilgannon’s

decision.
Background
Dominick Feeley suffers from several medical conditions. He has various
heart problems including coronary artery disease, hypertension, and obesity.
(Decision,’ 3-4) He also suffers from diabetes and from mental health issues

1

Citations to the record will be abbreviated as follows:

1

including an adjustment disorder and anxiety. (Decision, 3-4) In addition,
Feeley reports experiencing several additional symptoms including blurry
vision, sleep apnea, left hand numbness, and bilateral knee and back pain.
(Hearing, 20-22; Decision, 4)
Before applying for disability benefits, Feeley worked as a data entry
clerk, a hospital admitting clerk, and a general clerk. (Decision, 10). Feeley
applied for benefits in October of 2011, claiming disability beginning as of
January 4, 2011. (Decision, 1). On March 28, 2013, an Administrative Law
Judge, Patrick Kilgannon, affirmed the determination that Feeley was not
disabled during the relevant period. (Decision, 12). That denial proceeded
through the administrative appeal process and was affirmed, rendering it a
final decision.
AU’s Decision
To determine whether Feeley met the criteria to be considered disabled,
the AU followed the familiar five-step process outlined at 20 C.F.R.
404.1520(a). Under that framework, an AU first asks whether the claimant is
presently engaged in substantial gainful activity. 20 C.F.R.
Step 2, an AU

§ 404.1520(b). At

asks whether the claimant has a medically determinable

“Decision” Social Security Administration Office of Disability Adjudication and
Review Decision, Dkt. No. 6-2, pp. 13-3 1.
—

“Feeley Brief’

—

Brief in Support of Plaintiff Dominick A. Feeley, Dkt. No. 9.

“Figurelli Evaluation” Psychological Evaluation performed by Jennifer C. Figurelli,
Ph.D., Dkt. No. 6-7, Exh. 4F, 330-334.
—

“Function Report”
“Gantz Letter”
521.

—

—

Function Report

—

Adult, Dkt. No. 6-6, Exh. 5E, 187

—

195.

Medical Records of Kenneth Gantz, MD, Dkt. No. 6-9, Exh. 9F, 481-

Hearing Tr. Transcript of Oral Hearing before AU Patrick Kilgannon, Dkt. No. 6-2,
32-66.
—

“Hoffman Evaluation” Hudson County Medical Determination, Report of Alexander
Hoffman, MD, Dkt. No. 6-7, Exh. 3F, 324-329.
—

“Smith Assessment” Physical Residual Functional Capacity Questionnaire,
completed by Dr. John J. Smith, Dkt. No. 6-8, Exh. 6F, 339-415.
—

2

impairment, or a combination of impairments, that is “severe.” 20 C.F.R.

§ 404.1520(c). At Step 3, the AU asks whether the claimant’s impairments are
so severe as to meet or medically equal the criteria for an impairment listed in
20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R.

§ 404. 1520(d). The AU

will then assess the claimant’s residual functional capacity (“RFC”). 20 C.F.R.

§ 404.1520(e). In layman’s terms, this means that the AU will determine what
is the most the claimant can do despite the limitations that have been
established. 20 C.F.R.

§ 404.1545(a)(l). At Step 4, the AU determines whether,

given that RFC, the claimant can still perform past relevant work. 20 C.F.R.

§ 404. 1520(a)(4)(iv). Finally, at Step 5 the AU will determine whether the
claimant can perform another kind of work that exists in the national economy.
20 C.F.R.

§ 404.1520 (a)(4)(v).

In this case, the AU

determined at Step 1 that Feeley had not engaged in

substantial gainful activity since the alleged disability onset date. (Decision, 3)
The AU noted that, after applying for disability benefits, Feeley briefly
attempted to work as a delivery driver at a restaurant, and then behind the
counter, but was unable to keep up. (Hearing Tr., 6; Decision, 3) Feeley was
forced to leave that position after only two weeks. The AU’s determination was
proper; the regulations explain that any work activity that ends within three
months because to an impairment should be considered an unsuccessful work
attempt, and should not be considered substantial gainful activity. (Decision, 3
citing 20 C.F.R.

§ 404.1574)

At Step 2, the AU

determined that Feeley had six severe impairments:

coronary artery disease (in a post-bypass status); hypertension;
hyperlipidemia; obesity; diabetes; and adjustment disorder. (Decision, 3) The
AUJ did not, however, find any severe impairments associated with various
other maladies of which Feeley complained. (Decision, 4) These included blurry
vision, sleep apnea, left hand numbness, and bilateral knee and back pain.
(Decision, 4) These symptoms, wrote the AUJ, were not supported by “medical
signs and/or laboratory findings demonstrating the existence of a medically

3

determinable physical impairment.” (Decision, 4) Accordingly, the AU found
they could not form the basis for a finding of disability. (Decision, 4)
At Step 3, the AU considered whether Feeley’s impairments, alone or in
combination, met or medically equaled the severity of one of the listed
impairments in Appendix 1 to 20 C.F.R. Part 404, Subpart P. The AU found
that none of the impairments individually or collectively met the required level
of severity. (Decision, 4-6)
The AU then determined Feeley’s residual functional capacity. Feeley,
the AU found, retained the capacity to perform “a range of sedentary work.”
(Decision, 6) Although Feeley could not “climb ladders, ropes, or scaffold,” he
could occasionally “climb ramps or stairs, balance, kneel, crouch, crawl, and
stoop.” (Decision, 6) The AU found that any work to be done by Feeley would
have to be “limited to unskilled work in a low stress job,” i.e., one “having only
occasional decision-making required and only occasional changes in the work
setting.” (Decision, 6)
At Step 4, the AU considered whether, given this RFC, Feeley could
return to his prior work as a clerk. To help answer this question, the AU
consulted a vocational expert named Louis Szollosy. (Decision, 10) Szollsy
testified that work as a clerk is semi-skilled, and that it may be performed at a
sedentary level, but is typically performed at a “light exertional” level. Based on
Feeley’s description, the vocational expert said that Feeley had in fact
performed his prior work at light exertional level. (Decision, 10) The AU
concluded that Feeley was not capable of returning to his prior job, either as he
performed it or as it is generally performed. (Decision, 10)
Finally, at Step 5, the AU considered whether there are jobs available in
the national economy that Feeley could perform. At this step, the AU was
again assisted by the vocational expert. The AU concluded, based on the
vocational expert’s testimony, that Feeley could perform work as a call out
operator, a charge account clerk, or a telephone quotation clerk. In each of
those positions, the AU found, a sufficient number of jobs exist in the national
economy for Feeley to find work. (Decision, 11)
4

Discussion
Feeley raises four principal objections to the AU’s decision. First, he
challenges the AU’s decision at Step 3 that Feeley’s impairments do not meet
or equal one of the impairments listed in Appendix 1. Second, Feeley argues
that the AU erred in rejecting the opinion of Feeley’s treating physician. Third,
Feeley argues that the AU erred in assessing his residual functional capacity.
Finally, Feeley argues that the Commissioner was wrong to conclude that there
are jobs in the national economy that Feeley could perform. (Feeley Brief, 1216) I have respectfully considered these contentions, but I disagree with them.

Standard of review

I.

This Court has jurisdiction pursuant to 42 U.S.C

§ 405(g). Under that

statute, a district court’s review is limited to deciding whether the AU’s
decision was supported by substantial evidence. 42 U.S.C.

§ 405(g).

Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate.” Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)
(internal quotation marks and citation omitted). It is “less than a
preponderance of the evidence but more than a mere scintilla.” Jesurum v.
Sec’y of U.S. Dep’t of Health & Human Servs., 48 F.3d 114, 117 (3d Cir.1995). If
the AU’s decision is supported by substantial evidence and is free from legal
error, I must affirm that decision, even if I might have decided the case
differently. Monsour Medical Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir.
1986).
II.

Step 3 Determination
Feeley’s objection to the AU’s evaluation of his impairments at Step 3

has three components. First, Feeley argues that the AU did not properly
consider Feeley’s obesity as an impairment on its own, nor did he consider how
5

obesity might be exacerbating other impairments. (Feeley Brief, 20) Second,
Feeley argues that although the AU considered Feeley’s impairments
separately, he did not properly consider whether those impairments, in
combination, were equivalent in severity to one of the listed impairments.
(Feeley Brief, 16-24) Third, Feeley argues that the AU improperly rejected the
opinion of Feeley’s treating physician, which was entitled to deference. (Feeley
Brief, 11, 23)
I find that the AU properly applied the regulations and that his
conclusion was supported by substantial evidence. The AU considered
whether the plaintiff’s impairments met or equaled the criteria provided in
Appendix 1 for three categories of impairments: endocrine disorders,
cardiovascular disorders, and mental disorders. The symptoms and afflictions
that the AU considered in his discussion of each category were not limited to
any one impairment. For example, the symptoms that the AU considered in
discussing the claimant’s cardiovascular disorders included symptoms
attributable to the claimant’s obesity such as mobility restrictions and swelling
of the legs. Likewise, the AU’s discussion of Feeley’s mental capacity included
an assessment of areas that would be affected by Feeley’s obesity, including
limitations on the activities of daily living and feelings of depression. In general,
the AU’s opinion embodies a holistic approach to Feeley’s impairments at Step
3.
a. Cardiovascular impairment

The AU properly treated the claimed impairments of the cardiovascular
system. Feeley’s medical records do not reflect diagnosable heart conditions of
sufficient severity to meet the listings in section 4.00. As of January 2012
Feeley’s heartbeat showed a “regular rate and rhythm” (Hoffman Evaluation, 2)
His heart tones were “a little distant” but there was no evidence of arrhythmia.
(Hoffman Evaluation, 2) There was only a “very fain ejection murmur.”
(Hoffman Evaluation, 2) A “stress rest myocardial perfusion scan” revealed “no
definitive evidence of fixed or eversible defect, a top normal to enlarged left
6

ventricle, and an ejection fraction of 47%.” (Decision, 7) There was no evidence
of significant arterial narrowing. (Decision, 4)
Likewise, the record indicates that the symptoms that Feeley suffers from
these heart problems are not sufficiently severe to meet the Appendix 1 criteria.
Feeley reported no negative side effects from his medications. (Decision, 9) He
walks with a “normal gait” and without the use of an assistive device. (Hoffman
Evaluation, 2) He had no difficulty getting on and off an examination table in
the doctor’s office. (Hoffman Evaluation, 2) As of January 2012, he was not
wheezing. (Hoffman Evaluation, 2) Feeley does report occasional swelling of his
legs, for which his doctor recommended a water pill which Feeley does not
take. (Hoffman Evaluation, 1; Hearing Tr., 10, 20) Overall, the record did not
reflect any significant or severe cardiac symptoms, and Feeley has pointed to
none. (Decision, 4)
Feeley’s own statements about his cardiovascular health are consistent
with the AU’s conclusions. In August of 2010 (i.e., prior to the alleged
disability onset date) Feeley reported that “from a cardiac standpoint he fe[lt]
well,” and he denied “effort-related chest pain, shortness of breath,
palpitations, or exertional dyspnea.” (Gatz Records, 3; Decision, 7) As of
January 2012 (approximately one year after the alleged disability onset date)
Feeley reported experiencing no chest pain. (Hoffman Evaluation, 1) He was
able to walk a number of blocks at a time. He could climb three flights of stairs
(he lived in a third-floor walk-up), sometimes without stopping. (Hoffman
Evaluation, 1) By February of 2013, at his hearing before the AU, Feeley
testified that his symptoms were “somewhat” controlled. (Hearing Tr., 16;
Decision, 6) The only symptoms he reported were shortness of breath, difficulty
lifting objects over five pounds, and swelling of the legs. (Hearing Tr., 16) As the
AU found, Feeley has not reported “any significant cardiac symptoms such as
chest pain or syncope during his many follow-up appointments with his
primary care physician.” (Decision, 9)
The evidence also supported a conclusion that Feeley’s heart condition
was not severely restricting his daily living activities. (Decision, 4) Feeley
7

reported that he is able to bathe, dress, and have breakfast on his own.
(Hearing Tr., 17; Decision, 4) He attempts to “do little things around the
house,” and runs errands and pays bills “as needed.” (Hearing Tr., 17-18;
Decision, 4) Every week he goes to church and goes shopping with his wife. He
took a bus to his appointment with Dr. Hoffman, and he is able to drive.
(Hoffman Evaluation, 1)
b. Mental impairment
The AU

also considered Feeley’s mental impairment, identified as

adjustment disorder. The AU accepted the evidence that Feeley does suffer
from an adjustment disorder. He cries about three to four times per week, and
“becomes depressed” two to three times a week. (Figurelli Evaluation, 3) He
takes Xanax three times per day for anxiety. (Hearing Tr., 17, 15; Decision, 6)
Feeley reported one instance in which he “though about not wanting to live.”
(Figurelli Evaluation, 3) Feeley also reports losing his temper on a regular
basis. (Figurelli Evaluation, 2-3) While I do not doubt that Feeley’s
psychological impairment is a serious challenge for him, there is substantial
evidence to support the AU’s conclusion that this impairment does not rise to
the level of severity required to meet the Appendix 1 criteria.
Appendix 1 contains three lists of criteria for severity relating to mental
disorders, contained in section 12.04, paragraphs A, B, and C. To satisfy step
3, the claimant must meet either: (1) the requirements of Paragraph A and the
requirements of Paragraph B; or (2) the requirements of Paragraph C. See 20
C.F.R. Pt. 404, Subpt. P, App. 1,

§ 12.04.

As to the first alternative, the AU bypassed Paragraph A and focused on
Paragraph B (both are required). Paragraph B requires that the claimant’s
impairment include at least two of the following four conditions:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social
functioning; or

8

3. Marked difficulties in maintaining concentration,
persistence, or pace; or
4. Repeated episodes of decompensation, each of
extended duration;
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04. The AU found that Mr. Feeley
had only mild difficulties in activities of daily living and social functioning.
(Decision, 5) The AU further found that Feeley had only moderate difficulties
in concentration, and noted no instances of decompensation. (Decision, 5)
As to the second alternative, Paragraph C requires any of three
symptoms: 1) repeated episodes of decompensation; 2) a residual disease
process resulting in such marginal adjustment that even a minimal increase in
mental demands or change in environment would cause the individual to
decompensate; or 3) A history of one or more years’ inability to function outside
of a highly supportive living arrangement, with an indication of continued need
for such an arrangement. 20 C.F.R. Pt. 404, Subpt. P, App. 1,

§

12.04. The AU

noted that none of those conditions were present.
The AU’s conclusions were supported by substantial evidence. With
respect to the Paragraph B criteria, Feeley does not experience marked
restriction in activities of daily living, nor in social functioning. Feeley reported
that he is able to bathe, dress, and have breakfast on his own. (Hearing Tr., 17;
Decision, 4) He runs errands and pays bills “as needed.” (Hearing Tr., 17-18;
Decision, 4) He is able to prepare sandwiches, snack foods, and microwaveable
meals on a daily basis. (Function Report, 3) He feeds his dog. (Function Report,
1) He does light housework such as “light laundry,” dusting, and vacuuming.
(Function Report, 3) He is able to drive and to use public transportation.
(Function Report, 4) He is able to watch television and play on the computer
“fairly well.” (Function Report, 4-5) Every week he goes to church and goes
shopping with his wife (they have their groceries delivered rather than carry
them home). (Hearing Tr., 17; Decision, 4) He stated that 4-5 times per week he
meets with friends, talks on the phone, or emails. (Function Report, 5;
Decision, 5) He stated that he gets along with authority figures “fairly well.”
(Function Report, 7) All of this constitutes substantial evidence in support of
9

the AU’s conclusion that Feeley’s activities of daily living and social
functioning are not so impaired as to meet the Paragraph B criteria.
There is also substantial evidence that Feeley’s concentration,
persistence, and pace are impaired, but only moderately so. Feeley does report
some problems with concentration and persistence. He says that he does not
finish what he starts (for instance, conversations, chores, or reading).
(Function Report, 6; Figurelli Evaluation, 6; Decision, 5) He becomes distracted
easily, loses things, and needs to be reminded about appointments and to take
his medication. (Figurelli Evaluation, 6; Decision, 5) Nonetheless, Feeley has
other abilities that ameliorate those difficulties. Feeley reports that he can pay
attention for about 30 minutes at a time. (Function Report, 6; Decision, 5) He
can follow instructions, both written and oral, “quite well.” (Function Report, 6)
He was able to recall a list of four words after five minutes, could perform basic
math, and could spell a simple word forward and backward. (Figurelli
Evaluation, 3)
Finally, Feeley reports no episodes of decompensation. (Decision, 5)
The AU’s determination that Feeley met neither the Paragraph B nor the
Paragraph C criteria was therefore supported by substantial evidence.
c. Endocrine Disorder
The AU

also considered Impairment 9.00, Endocrine Disorders. Subpart

5 of this listing explains that the impairments resulting from endocrine
disorders like diabetes are evaluated under the listings for the other body
systems that are affected. 20 C.F.R. Part 404 Subpart P, Appx. 1

§ 9.00(B). For

instance, diabetes can lead to complications from hyperglycemia, including
gangrene, coronary artery disease, infection, and cognitive impairments. See 20
C.F.R. Part 404 Subpart P, Appx. 1

§ 9.00(B)(5)(a).

Feeley’s medical records show no evidence that his diabetes had an
impact on another body system serious enough to meet one of the listings.
(Decision, 4). Feeley’s diabetes is treated with medication, from which Feeley
reported no negative side effects. (Decision, 6, 9). Dr. Hoffman, the consultative
10

physician, indicated that Feeley’s diabetes “was fairly well-controlled.”
(Decision, 7). Thus, the AU’s conclusions that Feeley’s impairments do not
meet the severity required by section 9.00 was supported by substantial
evidence.

d. Feeley’s arguments of procedural error at Step 3
For the reasons expressed above, the AU’s Step 3 determination had
ample record support. Feeley argues that it was nevertheless infected by
procedural error. The matter must be remanded, he says, because the AU
failed to sufficiently consider Feeley’s obesity individually and in combination
with other impairments; generally failed to consider the combined effect of all of
his impairments; and failed to give due weight to the opinion of his treating
physician. I disagree.

(i)

Obesity and combination of conditions

The Social Security Administration has explained how ALJs should
consider a claimant’s obesity in Social Security Ruling 02-1P. Because obesity
is not an impairment listed in Appendix 1 (SSR 02-1P, 2002 WL 34686281 at
*4), the AU at Step 3 should consider whether the claimant’s obesity is
equivalent to one of the listed impairments. The AU is directed to consider
obesity in isolation, and also in combination with other impairments.
As for considering obesity alone, the regulations explain:
We may also find that obesity, by itself, is medically equivalent to a listed
impairment... For example, if the obesity is of such a level that it results
in an inability to ambulate effectively, as defined in sections 1 .OOB2b or
101.OOB2b of the listings, it may substitute for the major dysfunction of
a joint(s) due to any cause (and its associated criteria), with the
involvement of one major peripheral weight-bearing joint in listings 1 .02A
or 101.02A, and we will then make a finding of medical equivalence.
SSR 02-1P 2002 WL 34686281, *5 (Sept. 12, 2002)
As for considering obesity in combination with other impairments, the
regulations explain that other conditions may be exacerbated by obesity, and
must be considered in combination with it:
11

We will.., find that a listing is met if there is an impairment that, in
combination with obesity, meets the requirements of a listing. For
example, obesity may increase the severity of coexisting or related
impairments to the extent that the combination impairments meet
the requirements of a listing. This is especially true of
musculoskeletal, respiratory, and cardiovascular impairments. It
may also be true for other coexisting or related impairments,
including mental disorders.
SSR 02-1P 2002 WL 34686281, *5 (Sept. 12, 2002). Indeed, the AU must
consider whether obesity, in combination with unrelated impairments, is
equivalent in severity to a listed impairment:
We will also find equivalence if an individual has multiple
impairments, including obesity, no one of which meets or equals
the requirements of a listing, but the combination of impairments
is equivalent in severity to a listed impairment.
Id.

All of these are alternative routes to the same goal. In all cases, the
question is whether the claimant’s impairments, alone or together, are severe
enough to be equivalent to one of the impairments listed in Appendix 1.
Here, the AU reviewed Feeley’s symptoms and conditions (including his
obesity) in detail. (See Part II.a

-

II.c, supra). He then concluded that Feeley’s

restrictions did not rise to a level that met or equaled any of the impairments
listed in Appendix 1. In doing so, the AU explicitly acknowledged that he was
considering Feeley’s impairments both alone and in combination as required by
Ruling O2-lp:
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1. .while there is no specific listing for obesity, this impairment
was considered in conjunction with the claimants other
impairments as instructed by Social Security Ruling O2-lp. In this
case, there is no evidence that the claimants obesity has
exacerbated his other conditions; for example, it has not impaired
his ability to ambulate effectively.
.

12

(Decision, 4)
As I found at Part II.a

-

II.c, supra, the record contains substantial

evidence to support that conclusion. Here, I also find that the AU’s
methodology was consistent with what the Third Circuit requires, and was not
infected by procedural error:
We also conclude that the AU’s step three analysis was sufficient
to permit judicial review. After broadly concluding that [the
claimant] has no impairment, which meets the criteria of any of the
listed impairments, the AU followed this conclusion with a
searching review of the medical evidence. Under our precedents,
this is sufficient. See Jones v. Bamhart, 364 F.3d 501, 503 (3d Cir.
2004) (finding step three analysis adequate where AU reviewed
medical evidence and concluded, “after carefully compar[ing] the
claimant’s signs, symptoms, and laboratory findings with the
criteria specified in all of the Listings of Impairments, the
claimant’s impairments do not meet or equal the criteria
established for an impairment shown in the Listings.”)
Klangwald v. Comm’r of Soc. Sec., 269 F. App’x 202, 204 (3d Cir. 2008). Here,
too, the AU conducted a searching review of the medical evidence. He explicitly

acknowledged his obligation to consider all impairments, including obesity,
alone and also in combination. He stated that he had done so, and made
findings amply supported by the record. That discharged the ALJ’s duty to
consider obesity and the other impairments, alone and in combination.
I find no cause for remand on this basis.
(ii)

Treating Physician

Feeley also objects that the AU improperly rejected the opinion of
Feeley’s treating physician, Dr. Smith. (Feeley Brief, 11) Dr. Smith filed a
“Physical Residual Functional Capacity Questionnaire” opining that Feeley
could not sit for more than 45 minutes at one time or for more than two hours
in the course of a workday. (Smith Assessment, 3-4; Feeley Brief, 24) Dr. Smith
also concluded that Feeley’s conditions would likely cause him to be absent
from work for an average of more than four times per month. (Smith
13

Assessment, 5; Feeley Brief, 24) And he stated that Feeley would need to
elevate his legs above his hips 60%-80% of the time. (Smith Assessment, 4)
Deciding whether a claimant is disabled is the purview of the
Commissioner alone. A claimant is not entitled to benefits simply because a
physician, even a treating physician, proffers the legal conclusion that the
claimant is disabled. See 20 C.F.R. § 416.927(d)(1) (“We [i.e., the Social
Security Administration] are responsible for making the determination or
decision about whether you meet the statutory definition of disability.. A
.

statement by a medical source that you are “disabled” or “unable to work” does
not mean that we will determine that you are disabled.”); Gantt v. Comm’r Soc.
Sec., 205 F. App’x 65, 66-67 (3d Cir. 2006).
The AU must, however, give the evidence respectful consideration and
state his or her reasons for accepting and rejecting it, particularly in the case of
the opinion of a treating physician. In general, the opinion of a medical
professional who has actually treated the patient is entitled to deference. (20
C.F.R. § 416.927(c)(2)) (“Generally, we give more weight to opinions from your
treating sources, since these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of your medical
impairment(s)).” But the opinion of a treating source must be given “controlling
weight” only when that opinion is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [the claimant’s] case record.” 20 C.F.R.

§ 416.927(c)(2).
Thus the AU

may reject a treating physician’s opinion if it is

contradicted by the doctor’s own records or other credible medical evidence in
the record. Here is an example of such a rejection, upheld by the Court of
Appeals:
Here, the AU rejected Dr. Gansheroffs opinion of marked
limitation because it contradicted his own treatment records,
which indicated Becker’s mental limitations as only moderate.
Likewise, the AU rejected Dr. Smith’s interrogatory responses and
conclusions regarding Becker’s ability to work because they
14

contradicted his own treatment records, which indicated that
Becker had responded positively to medication and treatment and
could sit, stand, walk, and lift to some degree. Dr. Smiths
interrogatory responses were also contradicted by Dr. Gouda, Dr.
Aguire, and even Becker herself, all of whom either documented or
testified that Becker was able to ambulate and perform various
light activities for periods of time without severe pain. Thus, the
AU could properly reject parts of the opinions of Dr. Smith and
Dr. Gansheroff.
Becker v. Comm’r of Soc. Sec. Admin., 403 F. App’x 679, 686 (3d Cir. 2010). See
also Morris v. Bamhart, 78 F. App’x 820, 824 (3d Cir. 2003) (upholding an
AU’s rejection of a treating psychiatrist’s opinion where that opinion was
inconsistent with the other medical evidence in the record).
The AU hearing Feeley’s case found that the opinions of a treating
physician, Dr. Smith, were not supported by the other medical evidence. For
example, Dr. Smith’s own treatment notes do not record significant cardiac
symptoms beyond shortness of breath and some difficulty lifting. (Decision, 6)
Likewise, although Dr. Smith opined that Feeley should keep his legs elevated
above his hips 60-80% of the time, no such diagnosis is indicated in Smith’s
treatment records (which span at least four years).
In addition, the AU was entitled to discount Dr. Smith’s opinion based
on the quality of the explanation he provided. “[A] treating physician’s opinion
may [also] be accorded less weight depending upon the extent to which a
supporting explanation is provided for the opinion.” Cunningham v. Comm’r of
Soc. Sec., 507 F. App’x 111, 118-19 (3d Cir. 2012). Here, Smith filled out a SSA
form, but provided little explanation for his conclusions. (See Dkt. No. 6-8,
Exh. 6F, 1-6)
In sum, I find that the AUJ’s decision to reject Dr. Smith’s opinion was
supported by substantial evidence and was not procedurally suspect. The AU
did not err in rejecting Dr. Smith’s opinion, and a remand is not required on
these grounds.

15

III.

RFC Assessment

Feeley also argues that the AU erred in assessing Feeley’s residual
functional capacity. I disagree.
The AU concluded that Feeley could perform sedentary, unskilled work
in a low-stress job. The evidence reviewed above amply supports that
conclusion. Treatment records indicated that Feeley had good upper body grip
strength and could drive, take public transportation, walk normally, and get on
and off an examination table without assistance. (Hoffman Evaluation, 1-2)
Records of Feeley’s mental condition are not inconsistent with the ability to
operate proficiently in a low-stress environment. Feeley has pointed to nothing
in the record (other than Dr. Smith’s opinion, which the AU rejected for
sufficient reasons) indicating that this assessment was not supported by
substantial evidence.
IV.

Step 5 Determination

Feeley also challenges the AU’s determinations at Step 5 that he was
capable of performing work that is available in the national economy. This
conclusion, too, was supported by substantial evidence and untainted by
procedural error, and I will uphold it.
The AU relied on the testimony of a vocational expert to conclude that
Feeley could perform three categories of jobs existing in significant numbers in
the national economy: a telephone quotation clerk, a call out operator, and a
charge account clerk (Decision, 11) Each of these is taken from the Department
of Labor’s Dictionary of Occupational Titles (“DOT”). (Decision, 11)
Feeley objects that these job categories are outdated. (Feeley Brief, 12-16)
These job categories, Feeley argues (albeit without citation), were last updated
in 1977. (Feeley Brief, 3 1-15) (I note, however, that the DOT itself was updated
in 1991.) Dates aside, Feeley argues that a simple reading of these job
descriptions compels the conclusion that they are out of date. (Feeley Brief, 1216)

16

As to one of these three job categories, Feeley has a point. The vocational
expert cited DOT No. 237.367-046, “Telephone Quotation Clerk.” The DOT
describes that job as follows:
Answers telephone calls from customers requesting current stock
quotations and provides information posted on electronic quote
board. Relays calls to REGISTERED REPRESENTATIVE (financial)
250.257-0 18 as requested by customer. May call customers to
inform them of stock quotations.
DICTIONARY OF OCCUPATIONAL TITLES,

§ 237.367-046, 1991 WL 672194.

The notion of an investor calling his brokerage house on the telephone to
have a stock quotation read to him by a receptionist who monitors an
“electronic quote board” does seem rather quaint. I am sure that it still occurs.
Nevertheless, the Vocational Expert’s testimony that in 2012 there were
approximately 970,000 telephone quotation clerk jobs available nationally, and
95,000 available regionally, seems dubious. (Hearing Tr., 31)
The Department of Labor itself now uses a more recent incarnation of the
2
Dictionary of Occupational Titles called O*Net. O*Net has abandoned the
“Telephone Quotation Clerk” job category. O*Net job categories, however,
3
contain cross-references correlating them to the categories in the DOT. I have
examined them in an effort to see whether “Telephone Quotation Clerk”
O*Net seems to have replaced the Dictionary of Occupational Titles. The SSA
may wish to reconsider its persistent reliance on the DOT in disability proceedings.
See http://www.doleta.gov/programs/onet/ accessed May 28, 2015; Cunningham v.
Astrue, 360 F. Appx 606, 616 (6th Cir. 2010) (“[TIhe Department of Labor replaced the
DOT with the Occupational Information Network (O*NET), a database that is
continually updated based on data collection efforts that began in 2001.”). See also
Horsley v. Comm’r of Soc. Sec., No. 11-cv-703, 2013 WL 980315, at *3 (S.D. Ohio Mar.
13, 2013) (making the same observation). The SSA itself has stated (albeit in a notice
in the Federal Register more than six years ago) that it “plans... to replace the
Dictionary of Occupational Titles.” Establishment of the Occupational Information
Development Advisory Panel, 73 FR 78864-01 (Dec. 23, 2008).
2

www.onetonline.org/crosswalk/DOT/; see also
www.onetcenter.org/ questions / 3 .html?c=Top (explaining that O*Net includes
“crosswalks,” which I take to mean “cross references,” between the O*Net classification
system and the DOT).
3

17

survives in a different guise. The category associated with the DOT’s
“Telephone Quotation Clerk” is “Receptionists and Information Clerks.” (O*Net
No. 43-4 171.00) O*Net describes the duties of that job thus: “Answer inquiries
and provide information to the general public, customers, visitors, and other
interested parties regarding activities conducted at establishment and location
4
of departments, offices, and employees within the organization.” Thus, it
would seem that the job of Telephone Quotation Clerk has been subsumed by
the job of general receptionist. To my mind, however, that is not a close enough
fit to permit me to carry over the old DOT category to the O*Net era. Although I
do not find such a conclusion implausible, the vocational expert offered no
opinion as to whether Feeley could perform the job of a general receptionist,
and I will not assume without evidence that he could.
Were this the only job category that the AU

had found Feeley could

perform, a remand might well be appropriate. See Cunningham v. Astrue, 360
Fed. App’x 606, 615 (6th Cir. 2010) (remanding to the Commissioner where the
two DOT job categories relied on appeared to be obsolete). In the end, however,
it does not matter that one of the three job categories appears questionable. I
do not have the same reservations as to the other two. And because the
vocational expert’s testimony indicates that each of those two categories
represents a significant number of jobs in the national economy, the AU’s
determination at Step 5 is still supported by substantial evidence.
The other two job categories relied upon by the AU do not strike the
court as obsolete. Those two categories are Charge Account Clerk and Call Out
Operator. (DOT Nos. 205.367-0 14 and 237.367-046, respectively).
The duties of a Charge Account Clerk are described thus:
Interviews customers applying for charge accounts: Confers with
customer to explain type of charge plans available. Assists
customer in filling out application or completes application for
customer. Reviews applications received by mail. Files credit
applications after credit department approves or disapproves
credit. May check references by phone or form letter and notify
‘

See www.onetonline.org/ link! summary! 43-4171.00.
18

customer of acceptance or rejection of credit [CREDIT CLERK
(clerical)]. May verify entries and correct errors on charge accounts
[CUSTOMER-COMPLAINT CLERK (clerical)], using adding
machine. May answer credit rating requests from banks and credit
bureaus. May issue temporary shopping slip when credit
references appear satisfactory.
DICTIONARY OF OccuPATIONAL TITLEs,

§ 205.367-0 14, 1991 WL 671715.

And here are the duties of a Call Out Operator:
Compiles credit information, such as status of credit accounts,
personal references, and bank accounts to fulfill subscribers’
requests, using telephone. Copies information onto form to update
information for credit record on file, or for computer input.
Telephones subscriber to relay requested information or submits
data obtained for typewritten report to subscriber.
DICTIONARY OF OCCUPATIONAL TITLES,

§ 237.367-0 14, 1991 WL 672186.

These job descriptions do not unlock memories of the Reagan era.
Nothing about them is inconsistent with the internet age; they seem to involve
a level of customer interaction that remains valuable in the current economy. A
charge-account clerk, for example, might work in a retail store and decide
whether to extend credit to a particular customer for purchases at that
particular store. Alternatively, such a clerk might work in customer service for
a bank or a credit card company. The job of call out operator seems to include
the functions of many an employee of a credit card company.
Though neither party cited O*Net in its briefing, I note that O*Net
contains categories that correspond quite closely to the DOT jobs of charge
account clerk and call out operator. See Earls v. Comm’r of Soc. Sec., No. 1:09cv-01465, 2011 WL 3652435, at *7 (N.D. Ohio Aug. 19, 2011) (rejecting an
argument that the DOT job categories were outdated where the categories had
corresponding entries in O*Net). That these DOT categories survive in the more
modern O*Net compilation strongly suggests that they are not obsolete.
The O*Net job corresponding to Charge Account Clerk is “Interviewers”
(O*Net No. 43-4111.00) That job is described as: “Interview persons by
telephone, mail, in person, or by other means for the purpose of completing
19

forms, applications, or questionnaires. Ask specific questions, record answers,
and assist persons with completing form. May sort, classify, and file forms.”
Thus, both jobs involve interviewing or surveying persons on the telephone
and recording the information obtained. Such persons may wish, for example,
to apply for something (including, but not limited to, credit).
The 0*Net job corresponding to Call Out Operator is “Credit Checker.”
(O*Net No. 43-404 1.02). That job is described as “Investigate history and credit
standing of individuals or business establishments applying for credit.
Telephone or write to credit departments of business and service
5
establishments to obtain information about applicant’s credit standing.” Both
the DOT and the 0* Net version of this job involve verifying an individual’s
credit history using the telephone or other methods. DOT says that the
individual will “[cjompile[j credit information, such as status of credit accounts,
personal references, and bank accounts.” The more modern O*Net description
very similarly says that the individual will “[c]ompile and analyze credit
information gathered by investigation,” and will “[c]ontact former employers
and other acquaintances to verify applicant’s emplployment, health, history,
and social behavior.”

Both the DOT categories and the O*Net categories list the jobs as
sedentary. Because these latter two DOT job categories do not appear to be
anachronistic, I find that the AU committed no error in relying on them (or the
vocational expert’s opinion based on them) to form his conclusions at Step 5.
The vocational expert testified that for a call out operator, there were
60,000 jobs available in the national economy and some 3,400 available in the
regional economy. (Hearing Tr., 30) For a charge account clerk, he stated that
there were 200,000 jobs available nationally, and 3,400 available regionally.
(Hearing Tr., 30). Either of these categories would thus constitute substantial
evidence to support the AU’s conclusion that a significant number of jobs
suitable for Feeley exist in the national economy.
See www.onetonline.org/link/ summary/43-404 1.02

20

I note in addition that the corresponding O*Net categories list similarly
large numbers of currently available jobs. For call out operator, O*Net indicates
that as of 2012, there were 52,000 such jobs in the national economy, and
1,400 in the New Jersey region. For charge account clerk, O*Net lists 205,000
jobs nationally, and 7,670 in the New Jersey region as of 2012.
Even excluding the category of Telephone Quotation Clerk, there was
substantial evidence to support the AU’s conclusion at Step 5 that there are a
sufficient number of jobs available in the national economy that Feeley could
perform.

Conclusion
For the reasons stated above, Feeley’s appeal will be denied. A separate
order will issue.
June 3, 2015
Newark, New Jersey

Kevin McNulty
United States District Judge

21