Georgine Irelan v. Jo Anne Barnhart, Comm Issioner of Social Security

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1908
GEORGINE IRELAN,
Appellant
v.
JO ANNE BARNHART,
COMM ISSIONER OF SOCIAL
SECURITY
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 02-cv-01192)
District Judge: Honorable Eduardo C. Robreno
Submitted Under Third Circuit LAR 34.1(a)
October 28, 2003
Before: SCIRICA, Chief Judge, NYGAARD and AMBRO, Circuit Judges
(Filed: December 4, 2003)
OPINION
AM BRO, Circuit Judge
Georgine Irelan appeals the District Court judgment affirming the denial of

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1An administrative law judge had previously dismissed Irelan’s 1996 application for
disability insurance benefits after she did not attend a hearing. Because we affirm the
District Court’s decision, it is not necessary for us to resolve the parties’ dispute over
whether this dismissal extinguished Irelan’s claim for disability insurance benefits.
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supplemental security income and disability insurance benefits by the Commissioner of
the Social Security Administration. At issue is whether the Commissioner’s decision is
supported by substantial evidence. 42 U.S.C. §§ 405(g); Plummer v. Apfel, 186 F.3d 422,
427 (3d Cir. 1999). Because we conclude that decision is supported by substantial
evidence, we affirm.
I.
Facts and Procedural History
Irelan applied for supplemental security income and disability insurance benefits in
1998.1 Irelan, age 51 at the time, alleged that she was disabled by pain in her neck,
shoulder and arm from cervical disc disease, and by other gastrointestinal and
gynecological diseases. An administrative law judge (“ALJ”) collected evidence at a
hearing in June 2000, and issued a decision denying Irelan’s application in January 2001.
In his decision, the ALJ found that Irelan’s cervical disc disease, a severe impairment,
restricted her from: 1) lifting and carrying more than 10 pounds (but occasionally carrying
up to 10 pounds); (2) overhead work activity with both upper extremities; (3) use of
vibrating tools and machinery; (4) frequent use of arms for work activity (but occasional
use of arms); (5) frequent driving; and (6) cold and damp work environments. However,
the ALJ determined that Irelan retained residual functional capacity to perform light

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sedentary work and was thus capable of performing her past relevant work as a data entry
supervisor as well as other jobs in the national economy.
In making his findings regarding Irelan’s functional limitations, the ALJ
discounted the treating physician’s opinion that Irelan was restricted in her ability to sit
and stand for sustained periods of time. The ALJ found that objective medical evidence
did not support this opinion, which was inconsistent with the opinions of several
consulting physicians who found Irelan was not restricted in her lower extremities. The
ALJ also found that Irelan’s own testimony regarding her functional limitations was not
credible. In making his findings regarding Irelan’s ability to return to past relevant work
or other work in the national economy, the ALJ relied on a vocational expert’s testimony.
In January 2002, the Appeals Council denied Irelan’s request for review of the
ALJ’s decision, making the ALJ’s determination an appealable final decision of the
Commissioner. Irelan appealed the Commissioner’s decision to the United States District
Court for the Eastern District of Pennsylvania. There the parties filed cross-motions for
summary judgment. In October 2002 Magistrate Judge Jacob P. Hart filed a sixteen-page
Report and Recommendation that the District Court grant the Commissioner’s motion and
deny Irelan’s. Judge Eduardo Robreno of the District Court adopted the M agistrate’s
Report in an order filed in January 2003. Judge Robreno supported his Order with a
thirty-seven-page memorandum. Irelan v. Barnhart, No. 02-1192 (E.D. Pa. Jan. 29,
2003).

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II.
Standard of Review
Although our review of the District Court’s order is plenary, “our review of the
ALJ’s decision is more deferential as we determine whether there is substantial evidence
to support the decision of the Commissioner.” Fargnoli v. Massanari, 247 F.3d 34, 38
(3d Cir. 2001) (quoting Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000)). 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). If the Commissioner’s findings of
fact are supported by substantial evidence, we are bound by those findings, even if we
would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999). Thus the issue before us is whether the Commissioner’s decision that
Irelan was not disabled, and thus not entitled to disability benefits, is supported by
substantial evidence.
III.
The Disability Determinations Process
Eligible disabled individuals are entitled to supplemental security income under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f, and disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. “Disabled
individuals” are “unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less

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than twelve months” and, because of this, are “unable to perform previous work . . . or
any other work which exists in the national economy.” Id. §§ 423(d)(1)(A),
1382c(a)(3)(A), (B).
The Social Security Administration has established a five-step inquiry to determine
whether a claimant is eligible for benefits under the Act. A claimant must identify that:
(1) she is not engaged in substantially gainful activity; (2) she suffers from a severe
medical impairment; (3) her impairment is listed by the Administration as one creating a
presumption of disability; (4) if the impairment is not listed, that the impairment
nonetheless prevents her from doing her past relevant work. If the claimant satisfies this
burden, then the Commissioner must grant benefits unless she can demonstrate (5) that
there are jobs in the national economy that the claimant can perform. 20 C.F.R. §§
404.1520, 416.920.
IV.
Analysis of Irelan’s Arguments on Appeal
A. The Commissioner’s functional limitations findings are supported by
substantial evidence.
Irelan argues on appeal that the Commissioner erred in (1) discounting the opinion
of her treating physician, Dr. Frye, who suggested that Irelan was restricted from standing
and sitting for sustained periods of time and in (2) relying on the opinion of consulting
physician, Dr. Vernick, that Irelan’s functional limitations relate only to head positioning
and use of upper extremities. However, the District Court correctly concluded that

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substantial evidence in the record supports the Commissioner in both of these decisions.
1. The Commissioner properly discounted the treating physician’s
opinion.
A treating physician’s opinion is entitled to controlling weight if it is consistent
with the other substantial evidence in the record and is supported by medically acceptable
clinical and laboratory diagnostic techniques. 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2). Irelan argues that Dr. Frye’s opinion is both consistent and supported.
We agree with the District Court that it is neither.
a. Dr. Frye’s opinion regarding Irelan’s functional limitations is
inconsistent with other evidence in the record.
Dr. Frye’s opinion is inconsistent with the record as a whole, including opinions of
eight physicians, none of whom corroborated her opinion that Irelan’s functional
limitations. Irelan argues that, under Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981), the
medical opinions not mentioned in the Commissioner’s decision cannot be considered
substantial evidence to support the Commissioner’s decision. In Cotter, we required from
the written decision of an ALJ “not only an expression of evidence s/he considered which
supports the result, but also some indication of the evidence which was rejected.” Id. at
705.
In this case, however, the ALJ’s written decision clearly indicates that substantial
evidence in the record—namely, the opinions of Drs. Vernick, Olewiler, and DiConnetto,
as well as several clinical test results—conflicts with Dr. Frye’s opinion. The fact that the

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ALJ’s written decision could have referenced five more physicians’ opinions as
inconsistent with Dr. Frye’s is hardly reversible error.
Next Irelan argues that the opinions of those physicians who only examined Irelan
once or twice should not supplant the opinions of Dr. Frye, Irelan’s long-term treating
physician. But the District Court correctly determined that length of treatment
relationship is just one of several factors the Commissioner should use in weighing a
physician’s opinion. The Commissioner can also consider the physician’s expertise and
specialty, the supportability of his or her opinion, and the consistency of that opinion with
other evidence in the record. 20 C.F.R. §§ 404.1527(d), 416.927(d). Thus, the opinions
of physicians who based their evaluations on only one examination can outweigh the
opinion of a long-term treating physician when, as in this case, those opinions are
rendered by specialists, are supported with clinical evidence, and are consistent with each
other.
Irelan also argues that the medical opinions rendered several years before her
initial 1996 application should not be considered substantial evidence inconsistent with
Dr. Frye’s opinion. But the ALJ did not indicate that he considered any of the 1992
opinions in this way. Rather, according to the ALJ’s written decision, he relied on the
findings of Dr. DiConcetto’s 1998 examination and Dr. Olewiler’s 1996 examination.
Thus we find all of Irelan’s arguments that Dr. Frye’s opinion is consistent with
substantial evidence in the record to be unpersuasive.

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b. Dr. Frye’s opinion regarding Irelan’s functional limitations is
not supported by clinical and laboratory diagnostic techniques.
The District Court also correctly found that Dr. Frye’s opinion is not supported by
objective medical or diagnostic testing or clinical findings. Rather, her opinion is based
on Irelan’s subjective complaints of pain. For example, there is simply no medical
evidence—in either Dr. Frye’s opinions or the opinions of other specialists that are in Dr.
Frye’s file—for her recommendations that Irelan is limited in her capacity to sit and
stand.
Irelan argues that it is “reasonable to assume that a person with chronic neck,
shoulder, and arm pain and restriction of neck mobility, would not be able to stand for
extended periods.” If this were true, one or more of the eight physicians who examined
Irelan’s neck, shoulder and arm pain would have made that assumption. None did.
2. The Commissioner properly considered the opinion of a consulting
physician, Dr. Vernick.
The District Court correctly determined that the Commissioner gave appropriate
weight to Dr. Vernick’s opinion using the framework at 20 C.F.R. §§ 404.1527(d),
416.927(d). Under these provisions, the factors in determining the weight of a medical
opinion rendered by a non-treating source are the (1) nature of the examining relationship,
(2) the nature of the treating relationship, (3) the supportability of the opinion, (4) the
consistency of the opinion with the record as a whole, and (5) the specialization of the
physician offering the opinion. Id. Temporal remoteness could also be considered as one

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of the miscellaneous factors that affect the weight the Commissioner should give to a
non-treating source’s opinion. 20 C.F.R. §§ 404.1527(d)(6), 416.927(d)(6). The District
Court concluded that: (1) Dr. Vernick was engaged to conduct independent medical
examinations of Irelan; (2) he did so on two occasions in a two year period; (3) his
opinions are fully supported as they detail Irelan’s subjective complaints, personal and
work history, the results of his own physical examination, and his conclusions as to the
physical limitations each test revealed; (4) his diagnosis of degenerative disc disease is
consistent with other doctors’ diagnoses; and (5) Dr. Vernick is an orthopedist—a
specialist. Thus, we agree with the District Court that the Commissioner correctly gave
considerable weight to Dr. Vernick’s opinion, and that temporal remoteness alone does
not prevent it from being substantial evidence that Irelan is not disabled.
Irelan argues that Dr. Vernick’s recommendation in his 1994 report that Irelan
return for a follow-up visit rendered his report equivocal and thus an inappropriate basis
for the Commissioner’s conclusions about Irelan’s functional limitations. This argument
is unpersuasive because the record contains opinions of other specialists who evaluated
Irelan after Dr. Vernick did, all of which are consistent with Vernick’s 1994 findings.
Irelan contends that if Dr. Vernick had reevaluated her, he would have had the benefit of
the MRI performed on Irelan’s neck several months after her visit. But another specialist,
Dr. Elias, did review the 1994 MRI, and he, like Dr. Vernick concluded that Irelan had
only mild degenerative disc disease and no neurological defects that could explain

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limitations in her lower extremities. Thus, record evidence suggests that even if Dr.
Vernick had conducted a follow-up visit after the 1994 MRI, he would not have changed
his opinion.
Therefore, for the reasons stated by the District Court, the Commissioner properly
considered Dr. Vernick’s opinion as substantial evidence that Irelan’s functional
limitations relate only to head positioning and use of upper extremities, and not
limitations on sitting and standing as Dr. Frye opined.
B. The Commissioner’s vocational findings are supported by substantial
evidence.
Based on the testimony of a vocational expert, the Commissioner found that, given
Irelan’s residual functional capacity (ability to perform light, sedentary work and
occasionally use her arms, but restricted from overhead work, driving, using vibrating
tools, and damp environments), she could perform her past relevant work as a data entry
supervisor (step 4). The District Court concluded that this finding was supported by
substantial evidence because it is consistent with Irelan’s own testimony of her
responsibilities as a data entry supervisor, for which the VE was present. The District
Court noted that nowhere in the record did Irelan indicate that she could no longer
perform particular work requirements as a result of her impairment.
The Commissioner also found that Irelan had transferable skills that qualify her for
other jobs in the national economy, even with her limitations, including the teaching or
selling of computer software (step 5). Though not mentioned by the ALJ in his written

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decision, the VE also testified that, even without transferable skills, Irelan was capable of
performing other non-skilled jobs in the national economy, including information clerk,
interviewer, hostess, hotel clerk, cashier, and attendant (such as at a recreational facility).
In her appeal, Irelan argues that the VE’s testimony cannot constitute substantial
evidence to support the Commissioner’s vocational findings. First she complains that the
VE did not provide numbers from the Dictionary of Occupational Titles (DOT) at the
hearing for the jobs he testified that Irelan could perform. Though he did submit a post-
testimony letter to the ALJ, the DOT numbers referenced in the letter did not match the
jobs about which he testified. But the Commissioner relied on the VE’s hearing
testimony, not his letter. And there is no legal basis for Irelan’s argument that “if the
claimant is to adequately test the accuracy of the VE testimony, the DOT numbers must
be available.” The DOT is not binding on the Commissioner. It is published by the
Department of Labor as a tool. Donohue v. Barnhart, 279 F.3d 441, 445-47 (7th Cir.
2002). And, especially as it relates to the ALJ’s decision at step 4, the DOT is irrelevant
because the VE’s testimony was consistent with Irelan’s own description of her
responsibilities as a data entry supervisor.
Irelan argues that the VE’s testimony regarding the transferability of skills was not
credible. Specifically, she claims that “[i]t is not reasonable to find that a data entry
supervisor can tutor computer software usage, ten years after leaving the workforce and
without having used computer software in more than one specific application for a

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specific employer.” Further, software sales skills and technical software usage are not in
her background.
The Commissioner may consider whether a claimant has transferable skills from
her past work to determine if she or he meets the requirements for other types of work in
the national economy. According to the Social Security Administration regulations,
transferability is “most probable and meaningful among jobs in which (i) the same or
lesser degree of skill is required; (ii) the same or similar tools or machines are used; and
(iii) the same or similar raw materials, products, processes, or services are involved.” 20
C.F.R. §§ 404.1568(d)(2), 416.968(d)(2). The regulations recognize that there are
varying degrees of transferability. “A complete similarity of all three factors is not
necessary for transferability.” 20 C.F.R. §§ 404.1568(d)(3), 416.968(d)(3).
Here substantial evidence in the record establishes Irelan’s familiarity with
computers and supports the Commissioner’s finding of transferability to other jobs
regarding computers. She learned how to use a personal computer, designed the screens
for other employees to use, learned various applicable software programs, and trained
other employees to use them. Furthermore, record evidence suggests that Irelan was
capable of performing other, non-skilled work in the national economy, as well as her
past relevant work as a data entry supervisor. Therefore, Irelan’s challenge to the
Commissioners’s transferability findings do not warrant reversal or remand of the
Commissioner’s decision.

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Irelan also complains about language in the District Court’s opinion regarding the
Commissioner’s finding that she could return to her past relevant work as a data entry
supervisor. The District Court noted that “[n]one of these comments suggest that Irelan
cannot perform full-time, sedentary work, but rather that she can, when and if provided
with proper accommodations.” Irelan argues that this language impermissibly invokes the
Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. In context, however, it is
clear that this language is not a reference to ADA-style accommodations, but rather to the
functional limitations suggested by Dr. Vernick.
For these reasons, the Commissioner’s findings at step 4 and 5 are supported by
substantial evidence, as Irelan’s arguments to the contrary are not persuasive.
C. The Commissioner’s credibility findings are supported by substantial
evidence.
The Commissioner found Irelan’s testimony about her functional limitations to be
less than fully credible, as Irelan’s alleged disabling symptoms “exceed what the
objective evidence and clinical findings could reasonably be expected to produce.” The
Commissioner also found Irelan’s testimony to be “inconsistent with [her] activities of
daily living which include her activities of shopping at the mall, her ability to drive a car,
her visiting her daughter in Bethlehem [PA] an average of three times per week and her
trips to Florida occurring about once per year.”
We agree with the District Court that there is substantial evidence in the record to
support the Commissioner’s credibility finding. There is no medical evidence suggesting

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that Irelan has neurological problems that would account for her complaint that her “arms
go dead.” Nor does the medical record corroborate her statement that she has trouble
sitting or standing.
Irelan argues that the Social Security Administration regulations prohibit the
Commissioner from considering evidence of her lifestyle in determining whether her
complaints are credible. But the regulation she cites in support of this argument, 20
C.F.R. § 404.1572, addresses lifestyle evidence in the context of a claimant’s ability to
work, not in the context of whether she is credible. That regulation provides: “Generally,
we do not consider activities like taking care of yourself, household tasks, hobbies,
therapy, school attendance, club activities, or social program to be substantially gainful
activities.” Irelan also undercuts her own argument by arguing in next paragraph of her
brief that “all factors,” including “lifestyle,” must be weighed in determining a claimant’s
credibility about pain. She accurately cites Social Security Ruling 96-7 as authority for
this principle. Thus, by Irelan’s own admission, the Commissioner properly considered
lifestyle evidence to support the finding regarding credibility. The lifestyle evidence cited
in the Commissioner’s decision (shopping, driving, traveling, etc.) is substantial evidence
to support the conclusion that Irelan’s alleged symptoms are inconsistent with her
lifestyle.
D. The Commissioner’s finding that Irelan does not suffer from a severe mental
impairment is supported by substantial evidence.
Irelan disputes the Commissioner’s finding that she does not suffer from a severe

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mental impairment. But there is no evidence in the record to support that any mental
impairment is severe. While Dr. Frye’s opinions suggest that Irelan suffers from
depression and anxiety, she has not referred Irelan to a mental health specialist. Nor does
she suggest that Irelan’s depression and anxiety contribute to any of her functional
limitations.
V.
Conclusion
For these reasons, we find that the Commission’s decision was supported by
substantial evidence in the record and affirm the District Court’s judgment.

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TO THE CLERK:
Please file the foregoing opinion.
By the Court,
/s/ Thomas L. Ambro
Circuit Judge
16

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