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Eileen George v. Michael J. Astrue

December 14, 2010

EILEEN GEORGE,
PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the review of the Report and Recommendation (ECF No. 16) issued by United States Magistrate Judge Peter C. Lewis, recommending that Plaintiff's Motion for Summary Judgment (ECF No. 13) be denied and Defendant's Cross-Motion for Summary Judgment (ECF No. 14) be granted.

BACKGROUND

On September 27, 2006, Plaintiff filed an application for disability insurance benefits, alleging disability since September 14, 2006. The application was denied initially and on reconsideration. On March 17, 2009, Plaintiff appeared with counsel for a hearing before an Administrative Law Judge ("ALJ").

On March 31, 2009, the ALJ issued a written opinion. (Admin. R. at 24-30, ECF No. 9-2). The ALJ found that Plaintiff has the following severe impairments: cervical disc disease, thoracic spondylosis and diabetes mellitus. The ALJ concluded:

Considering the [Plaintiff]'s age, education, work experience, and residual functional capacity, the [Plaintiff] has acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy, including the occupation of school nurse, which is skilled light work, of which there are 500 jobs in the San Diego economy and 75,000 jobs in the national economy. This finding ... is predicated on expert vocational testimony provided at the hearing.... The [Plaintiff] has not been under a disability from September 14, 2006 through the date of this decision.

Id. at 30. The ALJ referenced testimony by a vocational expert at the March 17, 2009 hearing. The vocational expert testified in response to a hypothetical that Plaintiff could perform the occupation of school nurse and insurance clerk. Plaintiff's counsel asked the vocational expert if a "public health license" is a "prerequisite" for the job of school nurse. Id. at 75. The vocational expert responded: "Not to my knowledge." Id.

On May 12, 2009, Plaintiff submitted a request for review of the ALJ's decision with the Appeals Council. Plaintiff submitted evidence indicating that the State of California requires a school nurse to have a baccalaureate or higher degree, whereas Plaintiff's counsel stated that Plaintiff only had an associate's degree in nursing.

On July 23, 2009, the Appeals Council issued a written notice denying Plaintiff's request for review and stating that the ALJ's March 31, 2009 decision is the final decision of Defendant Michael J. Astrue, Commissioner of the Social Security Administration ("Commissioner"). The Appeals Council stated in part: "Your [attorney] contended that the vocational expert testimony is deficient because the State of California requires a school nurse to have a baccalaureate or higher degree. However, there is no indication such requirement is enforced across the nation." Id. at 2.

On September 23, 2009, Plaintiff filed a Complaint in this Court seeking judicial review of the Commissioner's decision. (ECF No. 1).

On May 14, 2010, Plaintiff filed the Motion for Summary Judgment. (ECF No. 13). On May 26, 2010, Defendant filed the Cross-Motion for Summary Judgment. (ECF No. 14).

On October 1, 2010, the Magistrate Judge issued the Report and Recommendation. (ECF No. 16). The Magistrate Judge concluded that the "ALJ's residual functional capacity finding is supported by substantial evidence" and the "ALJ sufficiently supported [the] finding that Plaintiff could perform work in the national economy." Id. at 9, 10. The Magistrate Judge stated in part:

[T]he vocational expert testified that a person with Plaintiff's residual functional capacity could perform 500 jobs regionally in the San Diego area and 75,000 jobs nationally as a school nurse. The vocational expert also testified that he did not think that a public health license was required for the job of a school nurse in the national economy. Even if Plaintiff is correct that she is not qualified to be a school nurse in the state of California because she lacks the proper credentials, Plaintiff failed to put forth any evidence that the remaining 49 states in the national economy require a four-year degree or a special credential as qualifications for employment. As Plaintiff failed to disprove that she could perform the job of school nurse in other regions of the country, Plaintiff left intact the ALJ's finding that there exists a significant number of jobs in the national economy that Plaintiff is qualified to perform.

Id. at 11. The Magistrate Judge recommended that Plaintiff's Motion for Summary Judgment be denied and Defendant's ...


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