Opinion
Civil No. 3:00-CV-0002-H
January 26, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of Title 28, United States Code, Section 636(b), and an Order of the Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. Before the Court is the Defendant's Motion for Summary Judgment, filed June 13, 2000, and the Plaintiff's Motion for Summary Judgment, filed August 31, 2000. Having reviewed the evidence of the parties in connection with the pleadings, the undersigned recommends that the Commissioner's motion be GRANTED and that the Plaintiff's Complaint be DISMISSED as follows:
The following procedural history is taken from the transcript of the administrative proceedings, which is designated as "Tr."
A. Procedural Background
This is a social security case. Glenda Hollan ("Plaintiff" or "Claimant") seeks judicial review of a final decision by the Commissioner of Social Security ("the Commissioner") who denied her claims for disability insurance benefits and supplemental security income benefits ("SSI") under Title II and Title XVI of the Social Security Act. Plaintiff filed her applications for disability and SSI benefits on February 6, 1995, claiming that she became disabled on June 25, 1993 and July 2, 1993, respectively. Tr. 73, 78. Plaintiff's applications were denied initially and upon reconsideration. Tr. 92, 95, 125, 129. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"). Tr. 132. After a hearing held on December 3, 1996, the ALJ issued his decision on February 23, 1997, concluding that Plaintiff was not disabled. Tr. 12-25. The Appeals Council denied Plaintiff's request for review. Tr. 6-7.
This discrepancy in the dates for the onset of Plaintiff's alleged disability is inconsequential to these findings.
The case is now before this Court. In this appeal, Plaintiff complains that the hypothetical question posed to the vocational expert ("VE") by the ALJ at the administrative hearing was defective in that it did not comport with his specific findings regarding her disabilities. As a consequence, she contends that the ALJ's determination that she could perform the occupation of machine tender which exists in significant numbers in the local and national economies is not supported by substantial evidence. The Commissioner contends, however, that substantial evidence supports the ALJ's decision that Plaintiff is not disabled and, therefore, he requests that his decision be affirmed.
Commissioner's motion for summary judgment was filed prior to the Plaintiff's motion, and in apparent anticipation of the Plaintiff's arguments, the Commissioner raised the issue of whether new evidence presented by the Plaintiff to the Appeals Council should have any effect on the ALJ's decision. Plaintiff did nor respond to nor discuss this issue in her motion, therefore, the Court will consider this issue waived.
B. Factual Background
Plaintiff was born on April 23, 1960. Tr. 73. She was 33 years old at the onset of her alleged disability in June of 1993 and 36 years old at the time of the 1996 administrative hearing. Tr. 73, 31-32. She left high school in the eleventh grade and, at the time of the hearing, she was attempting to obtain her GED equivalency degree. Tr. 32, 40. She has some vocational training as a nurse's technician, and her work history includes occupations as a short-order cook, dietary aide, dietary clerk, and medical assistant. Tr. 32, 57-58.
Plaintiff has alleged that she is disabled from a combination of physical and mental impairments, including neck pain, right hand and wrist pain associated with carpal tunnel syndrome, low back pain, hearing loss, hypertension, anemia, depression, and borderline intellectual functioning. In June of 1993, Plaintiff injured her neck, right wrist, arm, and shoulder while pushing a heavy patient on a stretcher during the course of her work as a medical assistant. Tr. 44-45, 197. In July, an examination of her right hand revealed that she suffered traumatic carpal tunnel syndrome, and subsequent nerve studies confirmed that finding. Tr. 194, 202-03.
In March of 1994, Plaintiff consulted with Dr. Sigurd Sandzen, an orthopedic surgeon specializing in hand and upper extremity surgery. Tr. 217. Dr. Sandzen reported pain and tenderness in Plaintiff's neck, right shoulder, forearm, and hand although she exhibited a full range of motion in her shoulders and elbows. Tr. 218. He recommended a conservative course of treatment for Plaintiff's symptoms including steroid injections, medication, and physical therapy. Tr. 223-24.
In early January of 1995, Plaintiff was evaluated by Dr. John Sklar of the Dallas Impairment Center. His examination revealed tenderness in Plaintiffs shoulders and chest, muscle spasms in her right arm, and a decreased range of motion and strength in her right wrist. Tr. 233. His diagnosis included mild right carpal tunnel syndrome and neck, shoulder, and arm pain. Id. In a letter explaining his findings, Dr. Sklar summarized Plaintiff as having a 0% whole body impairment. Tr. 242. He stated that while Plaintiff exhibited some problems, they were better characterized as chronic pain syndrome. Tr. 241-43. With respect to any motion, neurologic, or strength deficits, Dr. Sklar reported test results with poor validity as there were indications of symptom magnification and that Plaintiff was giving less than maximal effort. Tr. 242-43. Overall, Dr. Sklar opined that Plaintiff could perform light work involving occasional lifting of ten to twenty pounds and frequent lifting of up to ten pounds and recommended that she return to work with these restrictions. Tr. 243.
In August of 1995, Plaintiff's family physician, Dr. D.A. Maynard, completed a functional limitations assessment, opining that Plaintiff could walk and sit up to four hours of an 8-hour workday, and that she could perform frequent lifting of ten pounds and occasional lifting of up to twenty pounds. Tr. 274-75. She could also perform repetitive simple grasping and pushing and pulling with both hands and fine manipulation with her left hand but not with her right. Tr. 274. He also reported, however, that she could bend only occasionally and could not stoop or squat, crawl, or climb and balance. Id.
Plaintiff returned to the care of Dr. Sandzen in February of 1996 and subsequent testing again showed the presence of right carpal tunnel syndrome which had worsened since her previous examination in 1994. Tr. 213-14, 302-03. Dr. Sandzen therefore recommended surgery, but Plaintiff was unfit to undergo surgery at that time. Tr. 358-59. In April of 1996, Dr. Sandzen opined in a letter to Plaintiff's counsel that, since June of 1993, she had been unable to perform certain functions with her right hand including data entry/typist, fine tool manipulation, working at the shoulders or above, any work with the elbows not supported on a flat surface, and any work with the wrists bent at an angle. Tr. 307. Later, in October of 1996, Dr. Sandzen restricted Plaintiff to lifting no more than ten pounds and minimal repetitive wrist and digital motion. Tr. 309.
With respect to Plaintiff's mental impairments, she was diagnosed in August of 1995 with dysthymic disorder and borderline intellectual functioning, and test results indicated the presence of depression. Tr. 282. In March of 1996, she was evaluated by the Dallas Mental Health/Mental Retardation Center which diagnosed her with major depressive disorder for which she was prescribed medication.
Plaintiff was represented by counsel at the administrative hearing on December 3, 1996. She testified that she had not worked since June 25, 1993. Tr. 41. As to her physical abilities, she stated that she could sit for twenty minutes before needing to change positions, and she could stand for thirty minutes and walk for about two blocks before needing to sit and rest. Tr. 36. She further noted that she had been restricted to lifting less than ten pounds, but she agreed with the ALJ that she could lift from ten to fifteen pounds. Tr. 37. She could not perform push-pull motions or bend over to touch her toes, but she could reach out to pick up items and manipulate her hands and fingers to operate small tools and equipment such as scissors, a toothbrush, and comb. Tr. 37. But Plaintiff could not perform repetitive manipulation tasks with her right hand without experiencing numbness and pain. Tr. 54. She also stated that she can read) write) and do simple arithmetic. Tr. 38-39.
Plaintiff further testified to having constant pain in her right hand up to her shoulder and in her knees, legs, and feet for which she takes medication. Tr. 42-44. She complained that her anemia, depression, and poor concentration also prevent her from working. Tr. 46-47. She also reported problems that she had sitting, reading, and comprehending material for her school assignments. Tr. 51, 53-54.
A vocational expert also testified at the administrative hearing. After reviewing Plaintiff's past relevant work and receiving a hypothetical question from the ALJ, the VE testified that Plaintiff could not perform her past relevant work as a medical assistant, cafeteria worker, or cook. Tr. 58-60, 62-63. Nevertheless, the VE also opined that there were jobs available in the local and national economies which Plaintiff could perform such as a machine tender, surveillance system monitor, and diet clerk. Tr. 63-64.
In his findings, the ALJ stated that Plaintiff could not perform her past relevant work, but she had the residual functional capacity to perform unskilled sedentary work that did not involve "bilateral use of her hands." Tr. 18-19. Relying on the VE's testimony, the ALJ concluded that a significant number of unskilled, sedentary occupations existed in the national economy which did not exceed Plaintiff's limitations and, therefore, she was not disabled under the regulations. Tr. 19.
II. ANALYSIS
To be entitled to social security benefits, the claimant must prove that she is disabled. Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984) . The legal standard for determining disability under the Social Security Act is "the inability to engage in any substantial gainful activity due to physical or mental impairments which can be expected to either result in death or last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1) 1328(a)(3)(A). The Commissioner utilizes a five-step sequential evaluation to determine whether a claimant is disabled. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991):
1. An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of the medical findings. 20 C.F.R. § 404.1520(b) 416.920(b) (1989).
2. An individual who does not have a "severe impairment" will not be found to be disabled. 20 C.F.R. § 404.1520(c) 416.920(c) (1989).
3. An individual who "meets or equals a listed impairment in Appendix 1" of the regulations will be considered disabled without consideration of vocational factors. 20 C.F.R. § 404.1520(d) 416.920(d) (1989).
4. If an individual is capable of performing the work she has done in the past, a finding of "not disabled" must be made. 20 C.F.R. § 404.1520(e) 416.920(e) (1989).
5. If an individual's impairment precludes her from performing her past work, other factors including age, education, past work experience, and residual functional capacity must be considered to determine if work can be performed. 20 C.F.R. § 404.1520(f) 416.920(f) (1989).Id. On the first four steps of the evaluation, the claimant has the initial burden of proving that she is disabled. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 2294 n. 5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner on the fifth step to show that the claimant is capable of performing work existing in significant numbers in the national economy and is therefore not disabled. See Greenspan v. Shalala 38 F.3d 232 236 (5th Cir. 1994) cert. denied 514 U.S. 1120 (1995). Once the Commissioner demonstrates that other jobs are available to the claimant, the burden of proof shifts to the claimant to rebut that finding. Selders v. Sullivan, 914 F.2d 614, 618 (1990). A finding that a claimant is disabled or is not disabled at any point in the five step evaluation is conclusive and terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
Under this five-step evaluation, the ALJ made the following findings relevant to Plaintiff's disability status. First, Plaintiff has not engaged in substantial gainful activity since July 2, 1993. Tr. 20. Second, although she has severe borderline intellectual functioning, dysthymic disorder and right carpal tunnel syndrome, she does not have an impairment or combination of impairments listed in the Listing of Impairments. Tr. 20. Third, Plaintiff is unable to perform her past relevant work as nurse's technician, dietary aide, and dietary clerk. Tr. 20. Fourth, she alleged that she is unable to work because of pain, but the credible medical evidence does not show an underlying medical condition serious enough to produce symptomatology that would prevent her from performing sedentary work. Tr. 20. Fifth, she has the residual functional capacity to perform the physical exertion and nonexertional requirements of work except for prolonged standing and walking, lifting and carrying more than ten pounds, bilateral use of her hands, or performing skilled work. Tr. 20. Sixth, these limitations restrict Plaintiff to performing a less than full range of sedentary work. Tr. 20. Seventh, although Plaintiff's additional nonexertional limitations do not allow her to perform the full range of sedentary work, there are a significant number of jobs in the Texas and national economies which she could perform, including machine tender positions. Tr. 21. Thus, the ALJ determined that Plaintiff is not disabled under the Regulations. Tr. 21.
Judicial review of the ALJ's findings is limited to whether the decision to deny benefits is supported by substantial evidence and to whether the proper legal standard was utilized. Greenspan, 38 F.3d at 235; Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989); 42 U.S.C. § 405(g), 1383(c)(3). Substantial evidence is defined as relevant evidence that a reasonable mind would accept as sufficient to support a conclusion. Id. (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). Moreover, a finding of no substantial evidence is appropriate only when there is no medical evidence or credible evidentiary choices in the record to support the Commissioner's decision. Johnson v. Bowen, 864 F.2d 340, 343-344 (5th Cir. 1988). The Court does not reweigh the evidence, retry the issues, or substitute its own judgment. Greenspan, 38 F.3d at 236 (citing Haywood, 888 F.2d at 1466); Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994). Rather, this Court reviews the Commissioner's legal conclusions de novo and ensures that the correct legal standard was utilized by the administrative court. Id.
A. The ALJ's Determination That Plaintiff Could Perform The Occupation of Machine Tender is Not Supported by Substantial Evidence
Plaintiff's point of error in this case centers around the hypothetical question which the ALJ presented to the VE at the administrative hearing and his examination of her concerning jobs which Plaintiff could perform. Pl.'s Mot. for Summ. J. at 6-7. In essence, Plaintiff complains that the question posed does not comport with the ALJ's formal findings regarding her disabilities, Id. For instance, she alleges that the hypothetical and the ALJ's subsequent questioning of the VE erroneously implied that she could perform "light" work, contrary to the ALJ's finding that she could only perform sedentary work. Id. at 11-14. She also complains that the hypothetical did not incorporate the ALJ's ultimate finding that Plaintiff could not perform work requiring "bilateral use of her hands." Id. 6-11. Finally, she contends that the ALJ erred by not including in the hypothetical his ultimate finding that Plaintiff suffered from borderline intellectual functioning. Id. at 15-17. Based on these alleged errors, Plaintiff contends that the VE's testimony is unreliable and, therefore, does not constitute substantial evidence supporting the ALJ's conclusion that Plaintiff could perform the machine tender job. The Court will discuss these arguments in turn.
The ALJ posed the hypothetical question to the VE, asking her if Plaintiff could perform her past relevant work given those limitations in the hypothetical and, if not, whether there were any light or sedentary jobs which she could perform. Tr. 59-60, 62-64. The relevant part of the hypothetical is as follows:
[I]f we were to impose restrictions of inability to sit for more than 20 minutes, stand for more than 30 minutes, walk further than 2 blocks, lift or carry 10, 15 pounds, unable to push, pull. Has some reaching ability, some handling ability. Memory and concentration is poor, due to depression. Pain in right hand, up to the right shoulder. Pain in her knees, and legs, and feet, but is helped with medication. Tr. 60.
1. The ALJ Erred in Implying That Plaintiff Could Perform Light Work
Plaintiff challenges the ALJ's hypothetical regarding her lifting restrictions and his question to the VE regarding her ability to perform both light and sedentary work. Her complaint is that the ALJ's hypothetical, utilizing a lifting limitation of fifteen pounds, and his question to the VE to identify both light and sedentary jobs which she could perform, erroneously implied that she could perform "light" work. Pl.'s Mot. for Summ. J. at 12. This error, Plaintiff claims, is compounded by the fact that the machine tender job which the VE testified she could perform, is denoted as a "light" job in the Dictionary of Occupational Titles ("DOT"). Id. at 12-14. Because the VE classified this job as "sedentary," Plaintiff contends, her testimony is unreliable in that it conflicts with the DOT. With respect to this conflict, Plaintiff contends that the DOT must control and, consequently, there is no substantial evidence that Plaintiff could perform sedentary work. Id. at 14.
The definition of "light" work in the social security regulations includes the ability to lift up to twenty pounds, while the definition of "sedentary" work includes the ability to lift no more than ten pounds. 20 C.F.R. § 404.1567(a), (b) (1999). As noted, the ALJ found that Plaintiff could perform sedentary work only.
The Fifth Circuit recently provided guidance on this issue in Carey v. Apfel, 230 F.3d 131 (5th Cir. 2000). In that case, the Circuit recognized the types of conflicts that may arise between the DOT, the VE's testimony, and the ALJ's findings. Carey, 230 F.3d at 144 n. 2. The Court also noted and discussed a split among the circuit courts as to what is the controlling authority when the VE's testimony conflicts with the DOT. Id. at 144-45. The Fifth Circuit did not perceive an actual conflict between the VE's testimony and the DOT to exist in Carey; nevertheless, they gave some guidance to the extent a conflict could be construed. Id. at 146-47. In particular, the Court stated:
As the Court recognized the Fourth, Sixth, and Eleventh Circuits hold that a VE's testimony is substantial evidence that the ALJ may rely upon, even when that testimony conflicts with DOT provisions. Carey, 230 F.3d at 144 (citations omitted). On the other hand, the Eight Circuit has held that the ALJ) may not rely on the VE's testimony if that testimony conflicts with the DOT. Id. (citation omitted). The Ninth, Tenth, and arguably the Second and Seventh Circuits have followed a middle ground approach, holding that, when the VE's testimony conflicts with the DOT or creates a conflict in the evidence based on the DOT, the ALJ may rely upon that testimony if the record reflects a substantial reason for deviating from the DOT. Id. at 144-45 (citations omitted).
[W]e agree with the majority of the circuits that the ALJ may rely upon the vocational expert's testimony provided that the record reflects an adequate basis for doing so. As the facts of this case demonstrate, all kinds of implicit conflicts are possible and the categorical requirements listed in the DOT do not and cannot satisfactorily answer every such situation. Moreover, claimants should not be permitted to scan the record for implied or unexplained conflicts between the specific testimony of an expert witness and the voluminous provisions of the DOT, and then present that conflict as reversible error, when the conflict was not deemed sufficient to merit adversarial development in the administrative hearing. Adopting a middle ground approach, in which neither the DOT nor the vocational expert testimony is per se controlling, permits a more straightforward approach to the pertinent issue, which is whether there is substantial evidence supporting the Commissioner's determination that this particular person can do this particular job or group of jobs.Id. Thus, Plaintiff's contention that the DOT classification of the machine tender job must control is directly contrary to Fifth Circuit authority. Rather, the issue here, as stated above, is whether the record reflects an adequate basis for the ALJ to rely on the VE's testimony, keeping in mind the ultimate goal of determining whether there is substantial evidence supporting his decision.
With these guidelines in mind, the Court turns to view the relevant evidence in the record. When asked by the ALJ to identify any sedentary or light jobs taking into consideration the limitations in his hypothetical, the VE testified that she would consider the machine tender position to be a sedentary job which Plaintiff could perform. Tr. 63. Although she cited to the specific 726685026 DOT code, which designates the machine tender position as a "light" job, she expressly stated, "in [the I machine tender category there are, there are numerous DOT codes and numerous jobs. That's [DOT Code 726685026] just one example." Tr. 63. According to the VE then, there are numerous other sedentary machine tender jobs which Plaintiff could perform. In fact, she then testified that, "for machine tenders in the sedentary, unskilled area there are approximately 5,000 in the State of Texas, and 74,000 in the US." Tr. 63. In short, the Court concludes that the record reflects an adequate basis for the ALJ to rely on the VE's testimony regarding Plaintiff's ability to perform sedentary work in a machine tender position. See Carey, 230 F.3d at 146. Consequently, the VE's testimony in this regard constitutes substantial evidence supporting the ALJ's decision. Accordingly, Plaintiff's request for remand should be denied.
2. The ALJ Erred By Not Including In The Hypothetical Plaintiff's Limitation On The "Bilateral use of her hands"
Plaintiff also complains that the ALJ's hypothetical did not incorporate his finding that she could not perform work requiring the "bilateral use of her hands." Plaintiff contends that the ALJ's hypothetical stating that she had "some reaching ability" and "some handling ability" is distinctly different from his finding that she had no "bilateral use of her hands." Id. at 9. She concludes, therefore, that the VE failed to consider this limitation in identifying the 5,000 machine tender jobs available in Texas and the 74,000 available in the national economy. Id. at 9-11. The Court disagrees.
Plaintiff herself acknowledges in her motion that she had the opportunity and did cross-examine the VE concerning this issue. When provided that opportunity, Plaintiff's counsel's questioning proceeded as follows:
[Plaintiff's counsel]: Regarding machine tender position[s], would bimanual dexterity be an important feature for that?
[VE]: Not for all machine tenders, no, sir.
[Counsel]: And to focus a little bit on the machine tender position —
[VE]: Um-hum.
[Counsel]: — you said there were about 5,000 positions in the State of Texas?
[VE]: Yes, sir.
[Counsel]: Now, was that, was that accounting for a push/pull restriction?
[VE]: Yes.
[Counsel]: Okay. And then we got off on the fine manipulation problem, or bilateral manual dexterity. And you said — if there was a restriction on bilateral manual dexterity, how would that affect that population of 5,000?
[VE]: I would deplete it by approximately 25 percent.
[Counsel]: All right. I have no further questions.
Tr. 67, 69-70. Thus, Plaintiff's own cross-examination alerted the VE to her limitations concerning the "bilateral use of her hands." The Fifth Circuit has clearly held that a defective hypothetical question will not result in reversible error when the claimant's counsel "is afforded the opportunity to correct deficiencies in the ALJ's question by mentioning or suggesting to the vocational expert any purported defects in the hypothetical questions (including additional disabilities not recognized by the ALJ's findings and disabilities recognized but omitted from the question) . . ." Bowling, 36 F.3d at 436 (emphasis added). Here, Plaintiff clearly cured any alleged defect and, consequently, remand is inappropriate on this basis.
That being said, in light of the VE's testimony that Plaintiff would be disqualified from 25% of the 5,000 available machine tender positions due to her dexterity limitations, the parties raise the issue of whether there remains substantial evidence in the record which supports the ALJ's decision that Plaintiff can perform work existing in "significant" numbers in the national economy.
In this regard, the Commissioner contends that, even subtracting 25% from the available machine tender positions as stated by the VE, that leaves 3,750 jobs in Texas and 55,500 jobs available nationwide, which, according to the Commissioner, constitute a "significant" number of jobs. Def.'s Resp. to Pl.'s Mot. for Summ. J. at 5. Plaintiff counters that determining whether 3,750/55,500 jobs amounts to a "significant" number is a fact question for the ALJ and consequently beyond this Court's authority. Pl.'s Reply at 2-5. Plaintiff argues, therefore, that because the ALJ did not specifically make a finding that these numbers are "significant, " this case must be remanded. Id. The Court again disagrees.
First, there is a wealth of authority recognizing that courts may determine whether a particular number of jobs available to the claimant constitutes a "significant" number for purposes of the Social Security Act. Secondly, Plaintiff's argument misses the mark. The issue before this Court, as in any social security case, is whether there is substantial evidence in the record to support the ALJ's findings. See Smith v. Chater, 962 F. Supp. 980, 982 (N.D.Tex. 1997) ("When determining the propriety of a decision of `not disabled,' this court's function is to ascertain whether the record considered as a whole contains substantial evidence that supports the final decision of the Commissioner, as trier of fact."). While the ALJ in this case without question relied on the VE's testimony in determining the number of available jobs which Plaintiff could perform, see Tr. 19, the pertinent finding at issue is not that Plaintiff could perform a specific number of available machine tender jobs, but rather that she could in general perform work which exists in significant numbers in the Texas and national economies. Tr. 21. The VE's testimony, adduced by Plaintiff herself, clearly established that at least 37,500 machine tender jobs existed in Texas and 55,500 nationwide. As noted in the preceding section, because the ALJ could properly rely on the VE's testimony, his finding that Plaintiff could perform work existing in significant numbers in the national economy is supported by substantial evidence. Accordingly, Plaintiff's request for remand should be denied.
See Hall v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988) (holding that 1,350-1,800 jobs is "significant"); Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988) (500 jobs significant); Barker Sec. of Health and Human Servs., 882 F.2d 1474, 1478-80 (9th Cir. 1989) (1,266 jobs significant) (citing other cases); Johnson v. Chater, 108 F.3d 178, 180 n. 3 (8th Cir. 1997) (200 jobs significant) (citing other cases); Trimiar v. Sullivan, 966 F.2d 1326, 1330-32 (10th Cir. 1992) (650-900 jobs significant); Lee v. Sullivan, 988 F.2d 789, 794 (7th Cir. 1993) (1,400 jobs significant); Cf. Mericle v. Sec. of HHS, 892 F. Supp. 843, 846-47 (E.D. Tex. 1995) (870 jobs not significant) (citing other cases). In both Jenkens and in Barker, the respective circuit courts made their determinations even after reducing the ALJ's finding by the number of jobs which the plaintiff alleged that he or she could not perform. Jenkens, 861 F.2d at 1087 (reducing ALJ's finding of 1,000 available jobs to 500 still demonstrated a "significant" number of jobs); Barker, 882 F.2d at 1479 (reducing ALJ's finding of 1,900 available jobs to 1,266 still demonstrated a "significant" number of jobs).
3. The ALJ Erred By Not Including In The Hypothetical His Finding that Plaintiff Suffers From Borderline Intellectual Functioning
Plaintiff's final contention is that the ALJ erred by not including in the hypothetical his finding that Plaintiff suffers from borderline intellectual functioning. Pl.'s Mot. for Summ. J. at 15-17. As discussed earlier, however, there is no reversible error when the claimant is provided an opportunity to correct a defective hypothetical by suggesting to the VE any disabilities recognized by the ALJ in his findings but omitted from the question. Bowling, 36 F.3d at 436 . Here, Plaintiff was afforded that opportunity, but she did not question the VE regarding her borderline intellectual functioning. Because no reversible error has occurred, remand of this case should be denied.
III. RECOMMENDATION
For the foregoing reasons, the court recommends that the Commissioner's Motion for Summary Judgment be GRANTED, and that Plaintiff's Complaint be DISMISSED.