Opinion
No. 99-1494-FR
September 8, 2000
Tim Wilborn, Portland, Oregon, for Plaintiff.
Kristine Olson, United States Attorney, William W. Youngman, Assistant United States Attorney, Portland, Oregon, for Defendant.
Javes Myung, Special Assistant United States Attorney, Seattle, Washington, for Defendant.
The plaintiff, Kim Luper, on behalf of her deceased mother, Marcia Peters, filed this action under 42 U.S.C. § 405(g) of the Social Security Act, as amended, to review and set aside the final decision of the Commissioner of Social Security (the "Commissioner") who denied Social Security disability insurance benefits to Marcia Peters.
PROCEDURAL BACKGROUND
Marcia Peters filed an application for Social Security disability insurance benefits on April 5, 1996, alleging that she became disabled on March 15, 1994 due to pain in her neck and right arm, depression, fatigue, fibromyalgia, and dysuria. Marcia Peters had acquired sufficient quarters of coverage to remain insured through September 30, 1998. The application of Marcia Peters was denied initially and upon reconsideration, after which she requested a hearing, which was held before an administrative law judge ("ALJ") on November 10, 1997. The ALJ denied the claim of Marcia Peters on March 17, 1998. The Appeals Council declined to review the ALJ's decision. On July 25, 1998, Marcia Peters died from respiratory collapse, which was a condition unrelated to her disability claim. Marcia Peters' daughter, Kim Luper, filed this action for review on October 21, 1999.
FACTS
Marcia Peters was sixty-three years old at the time of the hearing before the ALJ on November 10, 1997. She was five feet, four inches tall. She weighed 160 pounds. Marcia Peters has a college education and has received a three-year diploma in nursing. She testified that her relevant work experience included her last job which began on December 13, 1993. She was a document coder for a medical center where she hand wrote codes. She worked eight hours a day for six weeks, but stated that hand writing the codes caused her pain. She took a week off to take muscle relaxants and to remain in bed. She returned to work for four hours a day for five more weeks, before quitting on March 15, 1994. Marcia Peters had not engaged in any substantial gainful activity since March 15, 1994. Before that job, her past relevant work included employment as an advice nurse for a medical clinic from October 23, 1989 to October 16, 1991, when she was terminated due to budget cuts. She worked full time as an advice nurse until she reduced her hours to six and one-half hours a day, then to four hours a day in July of 1991, claiming that joint pain forced her to reduce her hours. Prior to 1989, Marcia Peters worked as a director of nursing at a nursing home for nine months. Although she was a registered nurse, she did not renew her nursing license in 1994 because she had failed to work sufficient hours to be entitled to do so. Marcia Peters alleged disability because of neck and right arm pain, depression, fatigue, fibromyalgia, and dysuria.
Testimony
Marcia Peters testified at the hearing before the ALJ that she had neck and back problems for the last twenty to twenty-five years; that these neck and back problems became increasingly worse until 1994, when she became unable to work at a desk because of radiating neck and back pain; and that she had this neck and back pain twenty-four hours a day.
Marcia Peters testified that she had suffered from depression since her twenties, receiving private and group therapy from time to time to address child sex abuse issues. She was constantly fatigued because the pain interfered with her sleep. She normally spent ten hours in bed at night, but slept for only four or five hours. After washing dishes for ten minutes, she had to rest for ten to twenty minutes. The medications she took made her tired, and she suffered nightmares once or twice a week.
Marcia Peters testified that, in 1991, she was diagnosed with chondromalacia in both of her knees and had noticed that the intensity of the pain increased after working on her feet as a staff nurse. Her knee problems prevented her from walking fast, stooping, kneeling, or crawling. Marcia Peters was right handed. She testified that her right arm often ached, preventing her from writing more than five minutes at a time. Other physical ailments to which she testified were tingling or numbness in her right calf, foot, and toes; swelling in her feet, ankles, calves, and sometimes her abdomen; nausea caused by the medication that she took at least once a day; dizziness caused by medication, one to ten times a day, lasting a few seconds to a few minutes; incontinence once a day; headaches caused by medication, everyday, all day, rating at a level four of intensity, on a scale of one to ten; muscle spasms every night in her legs and lower back; brief leg muscle cramps two to three times a month; falling five to six times a year; pain in her lower back and right leg from going up stairs; taking thirty minute naps daily; sitting or lying down for fifteen to twenty minutes, every hour; lifting no more than ten pounds; standing no longer than ten minutes; walking no further than four blocks without a rest; and sitting no longer than twenty minutes. She stated that she had one percent "good days" per month and spent seventy-five to eighty percent of her waking hours lying down or reclining.
Marcia Peters testified that she did her own laundry and housework in her rented room, and that she had no difficulty handling things with her hands or fingers. When comparing her pace to five or ten years before, she testified that she was fifty percent slower.
Kim Luper saw her mother, Marcia Peters, twice a week for the two years prior to the hearing. She testified that her mother's pace had slowed tremendously, restricting walking to four blocks before she needed to rest. Kim Luper testified that her mother seemed to be in constant pain. Kim Luper testified that her mother could perform housekeeping duties or wash dishes for ten minutes before needing to sit, lie down, walk around, or stretch for twenty to thirty minutes. Kim Luper had the impression that her mother's irritability was due to depression. Although Marcia Peters had a driver's license, she did not drive because she did not have a car. Kim Luper testified that she accompanied her mother on errands, shopping, to the movies, and out to dinner.
Medical Evidence
An examination of Marcia Peters' joints on March 14, 1994 showed a normal range of motion of her knees, hips, wrists, and elbows.
X-rays showed very mild mid-lumbar dextroscoliosis on October 6, 1994. Ray F. Friedman, M.D., had two impressions: (1) findings consistent with degenerative disc disease, L 4-5 position; and (2) partially sacralized L5.
Mark Bajorek, M.D. gave Marcia Peters six months of disability on February 8, 1995, relating to her abuse as the adult survivor of incest after she reported panic-like episodes around men. Dr. Bajorek referred Marcia Peters to a therapist on April 5, 1995, since she had reported being the adult survivor of sexual abuse. Her student loans were then deferred for six months due to her disability. Marcia Peters' reports of occasional vertigo and muffled sounds was assessed as eustachian tube dysfunction bilaterally by Dr. Bajorek on July 19, 1995. After a physical examination of Marcia Peters on October 25, 1995, Dr. Bajorek reported that she was able to ambulate without any difficulty. Dr. Bajorek prescribed medication for her depression and encouraged her to lose weight to alleviate the pain caused by arthritis. Dr. Bajorek stated that Marcia Peters was "a woman who is here for a number of complaints, including wanting deferment on her student loan." TR 216.
From January to March of 1996, Marcia Peters participated in group therapy with Reatha Ryan, RN, MN, PMHNP.
Marcia Peters reported joint pain, depression, and poor sleeping habits on April 1, 1996. The notes of the Oregon Health Sciences University Hospital and Clinic state: "Patient anticipates applying for permanent disability when she turns 62 y.o. She would like Dr.'s notes to confirm/support her disability." TR 210.
Joseph Eusterman, M.D. examined Marcia Peters on May 18, 1996. He reported that she was "better psychologically" as a result of therapy. TR 191. Although Marcia Peters demonstrated eight of eighteen tender points used for determining fibromyalgia, she did not unequivocally meet the physical examination criteria for fibromyalgia. Dr. Eusterman noted that Marcia Peters had taken some medication that day which may have reduced the inflammation. Dr. Eusterman reviewed the film taken of Marcia Peters' lumbosacral spine in October of 1994, which showed moderate narrowing of disc space. It was his opinion that this narrowing was "not considered to be a cause of any of her symptoms at [that] time." TR 194. No stigmata of osteoarthritis was exhibited. On June 7, 1996, Dr. Eusterman reported that Marcia Peters was capable of medium level work and could lift and carry twenty-five pounds frequently and stand/walk six out of eight hours.
On May 18, 1996, after reviewing the spinal x-rays, David J. Wright, M.D. concluded that Marcia Peters had mild lumbar degenerative changes and was capable of medium level work.
Medical records of February 6, 1995, February 17, 1995, March 30, 1995, July 17, 1996, October 29, 1996, November 11, 1996, November 29, 1996, and December 4, 1996 demonstrate on-going urinary tract infections and urinary incontinence. These problems were treated with medications and behavioral changes, although an intravenous catheter test on January 23, 1997 revealed no abnormalities.
On January 20, 1997, Dr. Bajorek examined Marcia Peters and found that she used diuretics excessively.
Radiological views of her right knee showed "[p]rominent chondrocalcinosis most likely the result of calcium pyrophosphate dihydrate deposition disease [with] mild associated arthropathy at the patellofemoral joint." TR 461. Dr. Bajorek expressed the same concern about Marcia Peters' possible overuse of diuretics on June 25, 1997. Dr. Bajorek then examined Marcia Peters on February 26, 1997 and found a "slight amount of point tenderness" in her left shoulder. TR 256. He diagnosed this tenderness as shoulder bursitis. Dr. Bajorek increased the dosage of the medication she was taking for depression and encouraged her to continue therapy. Dr. Bajorek prescribed medication on April 11, 1997 for irritation in Marcia Peters' shoulder and the back of her neck.
On October 24, 1997, Dr. Bajorek completed a "Fibromyalgia Residual Functional Capacity Questionnaire" created by legal counsel for Marcia Peters. Dr. Bajorek stated that Marcia Peters met the criteria for fibromyalgia and determined that she also suffered from edema and depression. When asked if it was reasonable to expect that Marcia Peters would experience substantial difficulty with stamina, pain or fatigue if she worked full time at light or sedentary levels of exertion, Dr. Bajorek replied, "No," although he did concede that she would need to work at a reduced pace. TR 262. Dr. Bajorek listed "None" as the answer to the request to identify clinical findings and laboratory and test results which showed Marcia Peters' medical impairments.Id. Dr. Bajorek responded that he was "unsure" as to whether Marcia Peters was a malingerer. TR 263. Dr. Bajorek opined that Marcia Peters could continuously sit and stand for ten to twenty minutes at a time, had to walk for two to three minutes every fifteen to twenty minutes, and had to lie down for ten minutes every hour.
Additional medical records indicate that Marcia Peters had breast biopsies in 1992 and 1997.
On June 7, 1998, Marcia Peters was admitted to an emergency room with complaints of shortness of breath. She died from respiratory collapse on July 25, 1998, when respiratory support was discontinued.
Vocational Expert
At the hearing, the ALJ presented a hypothetical set of facts to the vocational expert ("VE"), Kathryn Whitcombe. The hypothetical claimant was described as one who had demonstrated exertional impairments, but who had the residual functional capacity for light work. The hypothetical claimant was one who should not engage in frequent overhead reaching with her shoulders; would require a sit/stand option on the job; and would be limited, but satisfactory, in dealing with stress because of psychological or emotional concerns. The VE opined that this hypothetical claimant could perform work as an exam clerk and advice nurse.
The VE reviewed Dr. Bajorek's questionnaire and stated that no work setting would allow a break of ten minutes where an employee would need to lie down every hour. The VE testified that the need to change clothes once a month for urinary incontinence would not be a negative vocational factor, nor would falling five to six times a year. The VE testified that sleepiness from medication, resulting in the need for naps, would be a negative vocational factor. The VE also testified that the overall description of a hypothetical person, as provided by Kim Luper, would not be able to sustain competitive employment in the jobs offered by the VE.
The ALJ's Decision
The ALJ found that the medical evidence established that Marcia Peters had neck and right arm pain, fatigue, fibromyalgia, and severe impairments which did not meet or equal the criteria for the listed impairments. A finding of severe depression was not supported by the evidence as no physician had found Marcia Peters' depression to be disabling. The ALJ found that Marcia Peters retained the residual functional capacity, with a sit/stand option, to return to the work she performed in the past as a document coder and consulting nurse.
The ALJ noted that Marcia Peters' treating physician, Dr. Bajorek, was unsure as to whether she was malingering. Dr. Bajorek reported that no clinical findings or laboratory or test results established Marcia Peters' impairments, and it was not reasonable to expect her to experience substantial difficulty with stamina, pain or fatigue while she was working an eight-hour day performing light or sedentary work, despite the fact that her symptoms met the criteria for fibromyalgia.
The ALJ noted that Dr. Eusterman was of the opinion in May of 1996 that Marcia Peters had full strength, a range of motion within normal limits, and was physically capable of medium work. The ALJ also noted that Drs. Martin Kehrli and William Habjan reported that Marcia Peters had no postural limitations. There was nothing in the medical record to support Marcia Peters' claims of all-day headaches and leg and back muscle spasms at night. Furthermore, there was no evidence that her medical providers had prescribed any therapies for dysuria or that her alleged condition was disabling.
The ALJ did not find Marcia Peters to be entirely credible because she testified that she sat in a recliner for seventy-five percent of the day, but there was no medical evidence in support of her testimony, and in fact it was contradicted by the testimony of Marcia Peters and Kim Luper. The ALJ found that Marcia Peters had never reported to her physicians that she was too tired to be examined, when in fact she was described as "well appearing" and "in no acute distress" throughout the record.
STANDARD OF REVIEW
This court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotingConsolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The court must weigh "both the evidence that supports and detracts from the [Commissioner]'s conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, a plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1502, 416.920. First the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b), 416.920(b).
In step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments."Yuckert, 482 U.S. at 140-41; see 20 C.F.R. § 404.1520(c), 416.920(c). If not, the claimant is not disabled.
In step three, the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Id.; see 20 C.F.R. § 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four.Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. § 404.1520(e), 416.920(e). If the claimant can work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner.
In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42;see 20 C.F.R. § 404.1520(e) (f), 416.920(e) (f). If the Commissioner meets this burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. § 404.1566, 416.966.
DISCUSSION Testimony of Marcia Peters
Kim Luper contends that the ALJ failed to provide clear and convincing reasons for rejecting the testimony of Marcia Peters. The Commissioner contends that the ALJ carefully reviewed all of the relevant medical and non-medical evidence in the record before considering Marcia Peters' subjective complaints.
It is undisputed that an ALJ is entitled to make a credibility assessment of a claimant's testimony. Nevertheless, once the claimant establishes an underlying impairment and a causal relationship between the impairment and some level of symptoms, clear and convincing reasons are needed to reject the claimant's testimony, providing there is no evidence of malingering. Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996). Marcia Peters' treating physician, Dr. Bajorek, reported that he was "unsure" whether she was a malingerer. TR 263.
Once the claimant produces objective medical evidence of an underlying impairment, the ALJ may not reject subjective complaints based solely on a lack of corroborative objective medical evidence regarding the alleged severity of the pain or degree of impairment. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). When concluding that subjective complaints are not credible, the ALJ must make specific findings supporting this conclusion. Id. Such findings must be properly supported by the record, and must be sufficiently specific to allow a reviewing court to conclude that the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony regarding pain. Id. at 345-46; 20 C.F.R. § 404.1529. The ALJ must make findings on the record and must support those findings by pointing to substantial evidence in the record. Id.
"To determine whether the claimant's testimony regarding the severity of her symptoms is credible, the ALJ may consider . . . (1) ordinary techniques of credibility evaluation . . . ; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities." Smolen, 80 F.3d at 1284. Also, the ALJ must consider the factors set forth in SSR 88-13, including the "claimant's work record and observations of treating and examining physicians and other third parties regarding, among other matters, the nature, onset, duration, and frequency of the claimant's symptom; precipitating and aggravating factors; functional restrictions caused by the symptoms; and the claimant's daily activities." Id.
An ALJ may consider daily activities as a factor in making credibility determinations. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). One reason the ALJ gave for rejecting the testimony of Marcia Peters is that she was never too fatigued to be medically examined, and records failed to show that she needed to rest during her examinations. This court agrees with Kim Luper that the Social Security Act does not require claimants to be utterly incapacitated to be eligible for benefits. See Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986). However, the fatigue level during physical examinations is only one of the reasons provided by the ALJ for discrediting the testimony of Marcia Peters. The ALJ also notes that there was no medical basis to support the claim that Marcia Peters often needed rest. Furthermore, the record of daily activities does not support the claim that Marcia Peters needed extensive daily rest. Marcia Peters asserted that she had to spend seventy-five percent of her time in a recliner, and that she napped for three to four hours a day. Although Kim Luper provides a lengthy argument in attempting to differentiate between three to four hours a day "napping," versus three to four hours a day "resting," suffice it to say that the ALJ considered the alleged down-time supplied by Marcia Peters, but found her testimony to conflict with her level of activities. The testimony of both Marcia Peters and Kim Luper regarding the daily activities of Marcia Peters is inconsistent with someone needing to rest for seventy-five percent of the day.
Kim Luper takes offense at the ALJ's notation that Marcia Peters was described as "well appearing" and "in no acute distress." In an attempt to discredit those terms, Kim Luper points to medical records describing her mother in those exact terms, shortly before her death. This court will not summarily discredit the descriptions "well appearing" and "in no distress," as provided by medical examiners. The phrases are appropriate in considering a claimant's overall health, and the ALJ did not improperly consider them in this case, nor did the ALJ provide the terms with undue weight. This court concludes that the ALJ made specific findings, giving clear and convincing reasons for rejecting Marcia Peters' testimony regarding her subjective complaints. The ALJ did not arbitrarily discredit the testimony of Marcia Peters, especially when even her treating physician was unsure whether she was a malingerer.
Testimony of Kim Luper
Kim Luper contends that the ALJ erred by completely disregarding her corroborating testimony because it conflicted with the medical evidence. The Commissioner contends that the ALJ did not entirely reject Kim Luper's testimony.
An ALJ shall consider observations by non-medical sources as to how an impairment affects a claimant's ability to work. 20 C.F.R. § 404.1513(e)(2); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). "[T]he ALJ can reject the testimony of lay witnesses only if he gives reasons germane to each witness whose testimony he rejects." Smolen v. Chater, 80 F.3d 1273, 1288 9th Cir. 1996). In Dodrill v. Shalala, 12 F.3d 915, 919 9th Cir. 1993), the court stated that "[a]n eyewitness can often tell whether someone is suffering or merely malingering. While this is particularly true of witnesses who view the claimant on a daily basis, the testimony of those who see the claimant less often still carries some weight."
The ALJ considered the lay testimony of Kim Luper, finding that her reports that Marcia Peters was able to grocery shop three or four times a month, do the laundry, attend appointments, and socialize did not support Marcia Peters' claims of severe disability. As the ALJ noted, Kim Luper had the following to say about her mother's daily routine:
She reads the newspaper, eats breakfast, showers, dresses, does some light chores, exercises mildly, sews for a while, lies down for a few minutes, eats lunch, takes the bus to run an errand or go to an appointment, lies down for a few minutes, sews or reads, eats a light dinner, watches t.v., goes to bed.
TR 18 (emphasis added by the ALJ) and TR 140.
The ALJ credited this testimony by finding that Marcia Peters' activities of daily living were inconsistent with her allegations of disabling pain. "[I]f a claimant is able to spend a substantial part of [her] day engaged in pursuits involving the performance of physical functions that [are] transferable to a work setting, a specific finding as to this fact may be sufficient to discredit an allegation of disabling excess pain." Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). While the ALJ failed to find that Kim Luper's mother was disabled, he did not entirely discredit Kim Luper's testimony.
Dr. Bajorek's Disability Assessment
Kim Luper contends that the ALJ improperly rejected the assessment of Marcia Peters' treating physician, Dr. Bajorek, because Dr. Bajorek identified symptoms of fibromyalgia. The Commissioner contends that Dr. Bajorek failed to provide clinical findings and laboratory and test results for any of Marcia Peters' impairments, not just limited to fibromyalgia. The Commissioner also contends that the ALJ found that Marcia Peters had fibromyalgia.
Where the ALJ fails to provide adequate reasons for rejecting the opinion of an examining physician, the opinion of the examining physician is to be credited as "a matter of law."Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (quotingHammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989)). "[T]reating physicians are employed to cure and thus have a greater opportunity to know and observe the patient as an individual. . . ." Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). If the physician's opinions are contradicted, the ALJ must provide specific and legitimate reasons for rejecting the opinions which are supported by substantial evidence in the record. Lester, 81 F.3d at 834.
The ALJ found that Marcia Peters suffered from fibromyalgia and was limited by this impairment. Although Dr. Bajorek identified fibromyalgia trigger points, he also concluded that it was not reasonable to expect that Marcia Peters would experience substantial difficulty with stamina, pain or fatigue if she worked full time at light or sedentary levels of exertion. The issue of the lack of clinical findings and laboratory and test results is important. Dr. Bajorek, as Marcia Peters' treating physician, could not identify any laboratory or test results to support Marcia Peters' long list of illnesses, including claims of neck and right arm pain, depression, and fatigue, as well as fibromyalgia. Kim Luper contends that testing for fibromyalgia is difficult, yet Marcia Peters had numerous ailments, none of which her treating physician could support with any clinical findings. Although Kim Luper contends that the ALJ was required to request additional evidence or clarification when there is an ambiguity or conflict with the medical record, it is impossible to request additional evidence when the treating physician declares that "none" exists. TR 262.
Kim Luper contends that the opinion of the agencies' reviewing employee, William Habjan, D.O., is not substantial evidence. But, the court agrees with the Commissioner that the ALJ must treat the medical opinions of state agency doctors as expert opinion evidence. See SSR 96-6p, cited in 1996 WL 374180. Kim Luper cites Gallant v. Heckler, 753 F.2d 1450 (9th Cir. 1984), in support of her position: "A report of a non-examining, non-treating physician should be discounted and is not substantial evidence when contradicted by all other evidence in the record."Id. at 1454 (quoting Millner v. Schweiker, 725 F.2d 243, 245 (4th Cir. 1984)). However, Dr. Habjan's opinion is not contradicted by all other evidence in this record. Dr. Eusterman reported that, although Marcia Peters demonstrated trigger points for fibromyalgia, he could not unequivocally diagnose her as having fibromyalgia.
Kim Luper contends that Dr. Eusterman was seriously misinformed regarding the nature and severity of Marcia Peters' spinal pathology, but it is a matter of differing opinions between physicians in the interpretation of Marcia Peters' x-rays. Although Kim Luper contends Dr. Eusterman failed to address the issue of sustainability, Dr. Eusterman was of the opinion that Marcia Peters was capable of medium level work and could lift and carry twenty-five pounds frequently and stand/walk six out of eight hours.
Job Performance
The ALJ found that Marcia Peters could perform two jobs as past relevant work: a coder and an advice nurse. Kim Luper contends that Marcia Peters only performed the job as a coder for a brief period of time, and thus, the job as a coder was an unsuccessful attempt to work and not past relevant work. The Commissioner contends that the work as a coder was not preceded by a significant interruption, and thus, it is past relevant work.
An unsuccessful work attempt must be preceded by a significant interruption of a person's work because of an impairment or the removal of special conditions related to the impairment. See SSR 84-25, cited in 1984 WL 49799. Although Kim Luper contends that there was a two-year interruption prior to Marcia Peters' coding job, so as to qualify as a significant interruption in work activity, and that Marcia Peters ended her coding job due to a disabling impairment, the ALJ found that Marcia Peters was not disabled, thus the required significant interruption had not been met, and the coding job was past relevant work.
Kim Luper contends that the vocational expert misidentified the nursing job as defined in the Dictionary of Occupational Titles. The Commissioner contends that the ALJ was not limited to Marcia Peters' past relevant work as she actually performed it, but may look at the identification of a consulting nurse as performed in the national economy. The vocational expert listed the categories upon which he relied in determining relevant work positions: 075.127-014 (advise nurse); 209.387-022 (data examination clerk); 075.137-014 (director of nursing or head nurse); and 075.364-010 (staff nurse and general duty nurse). TR 59. Kim Luper contends that 075.127-014 is a job entirely different from the job that Marcia Peters performed.
The Dictionary of Occupation Titles defines nurse consultant as one who:
Advises hospitals, schools of nursing, industrial organizations, and public health groups on problems related to nursing activities and health services: Reviews and suggests changes in nursing organization and administrative procedures. Analyzes nursing techniques and recommends modifications. Aids schools in planning nursing curriculums, and hospitals and public health nursing services in developing and carrying out staff education programs. Provides assistance in developing guides and manuals for specific aspects of nursing services. Prepares educational materials and assists in planning and developing health and educational programs for industrial and community groups. Advises in services available through community resources. Consults with nursing groups concerning professional and educational problems. Prepares or furnishes data for articles and lectures. Participates in surveys and research studies.
Exhibit A to Plaintiff's Reply, p. 1.
The vocational expert testified that an "[a]dvise nurse fits best under the category of nurse consultant, sedentary, skilled employment." TR 55. Marcia Peters testified about her work as an advice nurse: "I would make a decision whether they needed to have an appointment at all or if I could give them home care advise. Or if they need an appointment right away, then I saw to it that they got that appointment." TR 45. While Marcia Peters' employment as an advice nurse does not match with the vocational expert's category choice, Kim Luper has not argued that the physical demands of the two positions are notably different, nor has Kim Luper provided any Social Security requirement that the failure to provide a proper occupation title, as defined in the Dictionary of Occupational Titles, requires remand.
CONCLUSION
Considering the record as a whole, the findings of the Commissioner are supported by substantial evidence, and therefore the court affirms the decision of the Commissioner.